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Alston v. Stewart

United States District Court, D. Maryland

February 26, 2018

RICKY ALSTON, Petitioner
v.
TIMOTHY S. STEWART, Warden, et al., Respondents

          MEMORANDUM OPINION

          James K. Bredar Chief Judge

         Petitioner, 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.

         BACKGROUND

         On 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.[1]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 On January 5, 2007, Petitioner's probation was revoked and he was sentenced to 18 months' imprisonment followed by 5 years' supervised release.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.

         After 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, [2]and commenced his 49-month term of supervised release. Id. at 15.

         On June 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).

         On July 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.

         On 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).

         In an 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.[3] The letter informed Petitioner:

         The 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 (Conviction)
D) Menacing -2nd: Weapon (Conviction)
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 Drug Testing
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.

         Petitioner's 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.[4] 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.[5] Id. at 56; see also ECF No. 15-1 at 5.

         Under 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.[6] 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 execution. Id.

         A third 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 guideline.

Id.

         The 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 2.[7] . . . 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 found warranted.

Id. at 49.

         After 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. at 61.

         ISSUES PRESENTED

         Petitioner 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 8.[8]
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 ...

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