United States District Court, D. Maryland
WILLIAM D. QUARLES, Jr., District Judge.
On September 25, 2013, this court received for filing a 28 U.S.C. § 2241 petition from William Hewlett ("Hewlett"). At the time he filed the petition, Hewlett was confined at the Federal Correctional Institution ("FCI") in Cumberland, Maryland. Hewlett filed an 88-page petition, with 49 exhibits,  contending that he has been held in unlawful custody due to respondents" illegal actions since 2012. ECF No. 1 at 8-10. He asserts that he was convicted of second-degree murder in the United States District Court for the District of Tennessee in 1989 and sentenced to 60 years in the custody of the Bureau of Prisons, Id. Hewlett maintains that his murder conviction is a parolable offense and he is eligible for release on parole in compliance with federal statute and regulations. ECF No. 1 at 8.
Hewlett's twenty-four claims can be pared down: (1) registered crime victims were not notified if their right to make oral statements at his first parole hearing in 2004 and at statutory interim hearings ("SIH") in 2008 and 2010; (2) the U.S. Parole Commission ("Commission") considered deficient progress reports and "aggravating, " "adverse" and unsubstantiated information maintained in his prison file which suggested his commission of other offenses; (3) he was denied due process when he was deprived of his presumptive parole release date of March 19, 2013; and (4) the parole process has been "illegal, arbitrary and capricious." ECF No. 1 at 10-88.
Currently pending before the court are respondents' motion and supplemental motion to dismiss or, in alternative, for summary judgment,  Hewlett's counter motion and amended counter motion for summary judgment,  and Hewlett's motion for judgment. Respondents have opposed Hewlett's motions. ECF No. 53. In addition, Hewlett has renewed his request for limited discovery and seeks reconsideration of the court's denial of his previous discovery request. ECF Nos. 40 & 41. Respondent has opposed those motions. ECF No. 50. Hewlett has filed a rebuttal. See ECF No. 55 & 56. Finally, Hewlett has filed a motion to place the case in abeyance, claiming that respondents were granted until July 25, 2014, to file oppositions and he has yet to receive the pleadings. ECF No. 54.
For reasons to follow, respondents' motion for summary judgment will be granted and the petition will be denied and dismissed. Hewlett's motions to dismiss or for summary judgment, for limited discovery, and reconsideration of an earlier Order denying the same will be denied. Further his motion to place the case in abeyance will be denied because he did in fact receive respondents' opposition and has filed a rebuttal. See ECF Nos. 50, 55-56.
Petitioner is serving a sixty-year sentence with a minimum 10-year term for murder in violation of 18 U.S.C. § 1111, and a concurrent five-year sentence for false use of a social security number in violation of 42 U.S.C. § 408(g)(2). ECF No. 21-1 at 2. The sentences were imposed in the United States District Court for the Eastern District of Tennessee in 1989. ECF No. 21-3.
The Commission began a series of hearings in February of 2004, ECF No. 21-1 at 1-2. The hearing examiner found the applicable parole range to be 150 months to be served prior to release and he recommended that Hewlett be paroled after serving 300 months (25 years). Id. at 2. The Commission adopted this recommendation and informed Hewlett by a notice of action ("NOA") dated March 8, 2004. ECF No. 21-8 at 1. The Commission issued the following statement pursuant to 28 C.F.R. § 2.20:
After review of all relevant factors and information presented, a decision exceeding the lower limit of the applicable guideline category by more than 48 months is warranted based upon the following pertinent aggravating case factors: You are a more serious risk than indicated by the guideline in that the current offense occurred while you were in absconding status and you took a person's life. During the period of the instant offense, you were using a false social security number in order to hide your identity. Your past behavior of sexual assaults also involved being under the influence of substances as [did] your current offense.
ECF No. 21-8 at 1.
Hewlett received a statutory interim hearing on January 23, 2006, and received an NOA dated February 14, 2006. ECF No. 21-2 at 3. The Commission advanced Hewlett's presumptive parole date by three months and formally withdrew the 1977 parole violation warrant. ECF Nos. 21-9 at 1-2; 21-10 at 1. He received another interim hearing on March 18, 2008, after which the Commission advanced his presumptive parole date by six months. ECF Nos. 21-11; 21-12. Two years later, on March 17, 2010, Hewlett received another statutory interim hearing. ECF No. 21-1 at 3. The Commission ordered no change to Hewlett's presumptive parole date of March 19, 2013. Id. The decision was affirmed by the National Appeals Board.
The crime victims did not participate in the aforementioned hearings. See ECF 21-1 at 3-5. On February 23, 2012, the Commission's victim witness coordinator received a telephone call from the sister of the murder victim in January of 2012. Id. at 4. The sister indicated that a relative had learned through Knoxville, Tennessee news reports that Hewlett was to be paroled in 2013, and that she and the victim's family had a strong desire to attend a parole hearing and to voice their opposition to Hewlett's parole. Id. The victim witness coordinator recommended that the Commission reopen the case to allow for victim participation. Id. The Commission adopted this recommendation and informed Hewlett that it was reopening his case based upon new adverse information pursuant to 28 C.F.R. § 2.28(f). ECF No. 21-18. A hearing was set for May 30, 2012. ECF No. 21-1 at 4.
Hewlett appeared for a special reconsideration hearing before a hearing examiner. Id. He was informed that the purpose of the hearing was for the family of the victim to make a statement opposing his release on parole. Id. Hewlett indicated that he understood, but wished to waive this hearing and all future hearings for parole. ECF No. 21-19; see also ECF No. 1 at Ex. 31. The hearing examiner wrote a memorandum recommending that a notice of action be issued to clarify the status of the case. ECF No. 21-1 at 4. The Commission issued an NOA, dated September 14, 2012, which stated that:
The presumptive parole date previously ordered by the Commission is void based on the prisoner's waiver of the presumptive parole date and any future parole hearings. Continue to expiration. If prisoner reapplies for parole consideration, the Commission will schedule another special ...