United States District Court, D. Maryland
K. Bredar Chief Judge
an inmate at the Federal Correctional Institution at
Cumberland (FCI Cumberland), has filed a Petition for Writ of
Habeas Corpus under 28 U.S.C. § 2241 in which he
challenges the U.S. Parole Commission's (USPC) revocation
of his supervised release and imposition of a 49-month term
of imprisonment. ECF No. 1. Petitioner subsequently amended
his Petition by naming various employees of the USPC as
Respondents. ECF No. 7. The Respondents have filed a Motion
to Dismiss or, in the Alternative, Motion for Summary
Judgment, ECF No. 15, and Petitioner has filed a Response in
Opposition, ECF No. 17. Petitioner has also filed a Motion to
Compel, seeking an evidentiary hearing on his Petition and
the appointment of counsel. ECF No. 22. The matter is now
ripe for review. After review of these filings, the Court
finds no need for an evidentiary hearing. See Rules
1(b), 8(a), Rules Governing Section 2254 Cases in the
United States District Courts and Local Rule 105.6. For
the reasons that follow, the Court shall grant
Respondents' dispositive Motion, deny Petitioner's
Motion to Compel, and dismiss this action.
August 25, 2006, in the Superior Court for the District of
Columbia, Petitioner pled guilty to attempted distribution of
cocaine, in violation of the D.C. Code. ECF No. 15-2 at
9.Petitioner was sentenced to 18 months'
imprisonment, followed by 5 years' supervised release.
However, the term of imprisonment was suspended in lieu of
probation. Id. On January 5, 2007, Petitioner's
probation was revoked and he was sentenced to 18 months'
imprisonment followed by 5 years' supervised release.
Id. He was released on May 16, 2008, and commenced
his term of supervised release. Id. at 9, 12. At
some point, Petitioner moved to New York and, on October 12,
2008, he was placed under the supervision of the U.S.
Probation Office for the Southern District of New York.
Id. at 15.
Petitioner “incurred several new arrests, tested
positive for the use of controlled substances and failed to
participate in drug treatment, ” he was arrested on
December 28, 2011, for violating the terms of his supervised
release. Id. at 4, 15. In June 2012,
Petitioner's supervised release was formally revoked and
he was sentenced to 11 months' imprisonment and 49
months' supervised release. Id. Petitioner was
released from prison on November 27, 2012, and commenced his
49-month term of supervised release. Id. at 15.
25, 2014, Petitioner was arrested by the New York Police
Department. Id. at 16, 18. As reported in the
probation officer's request for a parole violator
warrant, the arrest report stated:
Alston entered Wolfgang's Steakhouse . . . and attempted
to use the restroom. When he was denied access to the
restroom, Alston allegedly pull[ed] out a knife and broke a
flower vase. NYPD officer[s] responded to the scene where
they recovered a pink handle gravity knife from the location
of the incident. The officers also reviewed a videotape of
the incident and then placed him under arrest. The officers
then searched him and recovered a red multi-function utility
knife from his person.
Id.; see Id. at 18 (arrest report).
15, 2014, prior to Petitioner's state trial,
Petitioner's probation officer requested the issuance of
a parole violator warrant. Id. at 14-17. The request
stated that Petitioner had violated the terms of his
supervised release based on Petitioner's above-detailed
arrest, admitted use of cocaine on multiple occasions,
failure to report to multiple random drug tests, and failure
to meet with his probation officer as scheduled. Id.
at 14-15. The warrant issued December 22, 2014; however,
because Petitioner was in the custody of the state of New
York, the warrant was not executed when issued and a detainer
was placed on Petitioner. Id. at 32-33.
August 12, 2015, Petitioner was convicted by a jury of
criminal possession of a weapon in the third degree, criminal
mischief with intent to damage property, and menacing with a
weapon in the second degree. Id. at 34, 56-57.
Respondents report that a charge of assault with a deadly
weapon was dismissed, id. at 34, but Petitioner has
stated that he was never charged with that offense,
id. at 56. Petitioner was sentenced to two to four
years' imprisonment on the possession charge, and six
months' imprisonment on each of the other charges.
Id. at 34. On June 23, 2016, Petitioner was released
from state custody and the U.S. Marshal executed the arrest
warrant for the supervised release violation. ECF No. 1-4 at
5; ECF No. 15-2 at 35. Although in the legal custody of the
United States, Petitioner was temporarily housed at the
Oneida County Jail in New York State before being transferred
to the Metropolitan Detention Center in Brooklyn and
subsequently the Federal Detention Center in Philadelphia,
both federal facilities. ECF No. 1-2 at 11 (reporting that
Petitioner was moved to MDC Brooklyn on July 11, 2016); ECF
No. 15-2 at 41 (indicating that Petitioner was housed at FDC
Philadelphia no later than October 24, 2016).
August 29, 2016, report, a case analyst with the USPC
determined that there was probable cause to find that
Petitioner had violated his supervised release and
recommended Petitioner's continued detention. ECF No.
15-2 at 36-38. In a September 7, 2016, letter to Petitioner,
the USPC advised Petitioner that it had found probable cause
to believe he had violated his supervised release and that
the USPC would conduct a hearing to determine whether his
supervised release should be revoked. Id. at
39-40. The letter informed Petitioner:
specific charge(s) upon which these finding(s) are based:
Charge No. 3 - Law Violation. A) Criminal Possession
of a Weapon 3rd Degree (Conviction)
C) Crininal Mischief: Intent to Damage Property
D) Menacing -2nd: Weapon
These charges and any additional information will be reviewed
at the hearing for possible violations. The evidence relied
on is indicated on the warrant application and/or in the
summary report of the preliminary interview.
Other charges as listed oh the warrant application/supplement
will also be considered at the time of your hearing.
Charge No. 1 - Failure to Submit to
Charge No. 2 - Failure to Report to Supervising
Officer as Directed
Charge No. 3 - Law Violation. B) Assault With a
Deadly Weapon - Knife
Id. at 39. The Probation Officer's request for a
parole violator warrant, the warrant application, and other
documents pertaining to the revocation were also mailed with
the letter. Id. at 40.
revocation hearing was scheduled for October 24, 2016, but
was continued at the request of Petitioner and his counsel.
ECF No. 15-2 at 41. Petitioner's initial hearing was
conducted on November 30, 2016. The hearing examiner
recommended finding that Petitioner committed violations 1,
2, 3(A), 3(C), and 3(D) as set forth in the September 7,
2016, letter (i.e., failure to submit to drug testing,
failure to report to supervising officer as directed,
criminal possession of a weapon in the third degree, criminal
mischief: intent to damage property, and menacing with a
weapon in the second degree). Id. at 42. The
examiner recommended no finding of a violation as to charge
3(B), law violation of assault with a deadly weapon.
Id. The examiner assigned the committed violations a
severity rating of Category 1 and found that Petitioner had a
salient factor score of 2, which yielded a Guidelines range
of 12 to 16 months' imprisonment. Id. at 43. The
examiner recommended a departure from the Guidelines range,
stating “you have already served a term above the
guidelines prior to the hearing (as a consequence of your new
state sentence). And additional time is needed for release
planning.” Id. Accordingly, the examiner
recommended that Petitioner serve 32 months'
imprisonment, less time already served. Id. at
56; see also ECF No. 15-1 at 5.
28 C.F.R. § 2.216(h), a second examiner is required to
concur in the recommendation before the recommendation is
submitted to the USPC for a decision. On December 12, 2016, a
second examiner reviewed and disagreed with the initial
recommendation's determination that the violations
corresponded with a severity rating of Category 1. ECF No.
15-2 at 46-47. The second examiner explained that the
violation 3(D), the New York conviction for second degree
menacing, was “most like Assault under the USPC
guidelines.” Id. at 46. Because this USPC
assault-like offense was committed with a knife, the second
examiner stated that “the proper severity rating is
Category Five, Assault with a Dangerous Weapon.”
Id. With Petitioner's salient factor score of 2,
this yielded a Guidelines sentence of 60 to 72 months'
imprisonment. Id. Because Petitioner's second
term of supervised release, imposed in June 2012 following
his initial revocation, was 49 months, the maximum sentence
he was eligible to receive on the second revocation was 49
months. Id. The second examiner recommended that
Petitioner receive this maximum sanction with no further term
of supervised release. Id. at 46-47. She explained
that, because Petitioner was “credited with 24 months
before the USPC warrant was executed on 6-23-2016, ”
the effect of this recommended maximum term was that
Petitioner would “serve a new term of 25 months
incarceration” from the date of the warrant's
examiner concurred with the second examiner's
recommendation that the appropriate severity rating was a
Category Five. Id. at 47. In support of this
determination, the third examiner explained that
The Commission intended that conduct involving assault with a
weapon be rated at the Category Five level only when the
offender's use of a weapon places a victim in
"imminent danger of bodily injury." (See page 41
USPC Rules and Procedures Manual). The New York statute
indicates that a defendant is guilty of Menacing
2ndDegree if he intentionally places or attempts
to place another person in reasonable fear of physical injury
by displaying a deadly weapon or dangerous instrument. In
this case, Alston pointed a knife at two restaurant employees
when confronted in person about his use of the restroom. I
find that pointing a knife at two individuals constitutes
conduct that places the victims in "imminent
danger" and that the offense should be rated in
accordance with the assault with a dangerous weapon
recommendation was referred to the USPC, which found that
Petitioner had committed charged violations 1, 2, 3(A), 3(C),
and (D), and made no finding as to charged violation 3(B).
Id. at 48. The USPC imposed the sentence articulated
by the second examiner of 49 months' total imprisonment,
comprising a new term of 25 months' imprisonment from the
execution of the arrest warrant and credit for the 24
months' imprisonment he served while incarcerated on
state charges. Id. The USPC provided the following
statement of reasons for its decision:
Your supervised release violation behavior has been rated as
Category Five severity because it involved Menacing with a
Weapon (which is most like Assault with a Weapon) and
administrative violations. Your new Salient Factor Score is
. . Your guidelines established by the Commission indicate a
customary range of 60-72 months to be served before release.
After review of all relevant factors and information
presented, a decision below the guidelines is warranted
because a decision below the guidelines is required because
the maximum authorized term of imprisonment limits the time
you will serve to less than the bottom of the guideline
range. A decision further below the guideline range is not
Id. at 49.
receiving an extension of time, Petitioner filed an appeal of
the USPC's decision with the National Appeals Board (NAB)
on December 19, 2016. Id. at 51-60. Petitioner's
appeal presented only one ground: that the USPC erred in
rating the severity level as a Category 5 because the
commission incorrectly ruled that his violation was like an
assault with a deadly weapon, thereby causing an error in the
computation of the sentence guidelines. Id. at 54,
56-60. Petitioner asked that the first examiner's
recommendation of 32 months' imprisonment be imposed
instead. On June 23, 2017, after Petitioner filed the instant
§ 2241 action, the NAB rejected Petitioner's
argument and affirmed the USPC's decision. Id.
filed this habeas action on May 15, 2017. ECF No. 1. As
numbered in the Petition, Petitioner presents the following
grounds for habeas relief:
1. After executing the arrest warrant on June 23, 2016, the
U.S. Marshal failed to return Petitioner “to the
custody of the Attorney General” for 18 days, and
neither “the warrant application or other notices
were” delivered to Petitioner. Id. at
2. Petitioner's due process protections were violated
because he did not receive the September 7, 2016, revocation
hearing disclosure and 28 CFR § 2.55(a) requires notice
at least 60 days prior to hearing. Id. at 9.
3. “Pursuant to § 2.215(a) (c), (d)(1)(ii), (f)
[Petitioner] was not permitted an opportunity to sign or date
any paperwork related to this action, no paper was produced
by U.S.M.S.” Petitioner also appears to take issue with
his placement in the Oneida County Sheriff's Department
immediately after arrest and his transfer to MDC Brooklyn on
“A-HOLD status with no other information.”
Id. at 10.
4. Petitioner was not advised of his right to counsel to
challenge the placement of a warrant as a detainer while he
was serving his state sentence pursuant to 28 CFR § 2.46
- 2.48, and the September 7, 2016, letter does “not
contain the regional commissioner review that should have
taken place between the months of April/May 2016.”
Id. at 10-11.
5. Petitioner “was unable to contest any action”
pursuant to the provisions of 28 CFR § 2.215 prior to
the hearing because he did not receive the requisite notice
from the USPC. Id. at 11.
6. This ground is missing from the original Petition,
although Petitioner presents the ground in his Response in
Opposition to the Motion to Dismiss. Petitioner argues that
the USPC failed to respond to his Freedom of Information Act
request for “all ...