Alexander v. Withers
| Decision Date | 21 November 2019 |
| Docket Number | Case No. 17-cv-545-NJR |
| Parties | ROBERT ALEXANDER, # 06204-021, Petitioner, v. SHANNON D. WITHERS, Respondent. |
| Court | U.S. District Court — Southern District of Illinois |
Petitioner Robert Alexander, an individual in the custody of the Bureau of Prisons, filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 to challenge the length of his incarceration after his parole was revoked. (Doc. 1). At the time he brought this action, Alexander was incarcerated at the USP-Marion. He was later transferred to another federal prison, and most recently informed the Court that he is in the custody of a Residential Reentry Management Center in Atlanta, Georgia. (Doc. 27). Alexander is serving a sentence of approximately 239 months as a result of a 2012 revocation of his parole. (Doc. 1, p. 12).
Alexander was convicted of bank robbery in the United States District Court for the Southern District of Georgia and, on April 3, 1987, he was sentenced to a 20 year term of imprisonment. (Doc. 15, p. 1; Doc. 15-1). He was released on parole in September 1993. (Doc. 15,p. 1). In March 1997, his parole was revoked for the first time, and he was released on parole again in September 1997. Id.
In July 2000, Alexander was arrested in Georgia on three charges: rape (Count 1); enticing a child for indecent purposes (Count 2); and child molestation (Count 3). (Doc. 15, p. 1; Doc. 15-3). In December 2002, Alexander pled guilty to a reduced charge of statutory rape and was sentenced to 20 years imprisonment. (Doc. 1, p. 1; Doc. 15, p. 2; Doc. 15-3).
On February 20, 2012, after Alexander completed serving his required period of incarceration on the Georgia offense, the United States Parole Commission executed the parole revocation warrant it had issued in 2000 shortly after Alexander's state arrest.2 (Doc. 15, p. 2; Doc. 15-4, p. 1). The Commission's parole revocation hearing was held on June 28, 2012. (Doc. 15-4). Based on Alexander's rape conviction and information contained in the police reports relating to the enticing and child molestation charges, the hearing officer found him in violation as to all three charges. (Doc. 15-4, p. 2). Alexander chose not to testify about the offense conduct, to avoid possible self-incrimination regarding a pending state habeas action. Id. The officer noted that Alexander had already served 143 months in custody, and calculated his re-parole guideline range at 78-110 more months to be served before release. (Doc. 15-4, p. 3). This was based on an Offense Severity Category of 7, because the revocation was based on a rape conviction, and a Salient Factor Score of 5. Id. The officer recommended that Alexander should be incarcerated "above the guidelines" until the expiration of his sentence, however, because he presented a more serious risk to the public than indicated by the numerical scores. (Doc. 15-4, pp. 4-5). In particular,the officer cited evidence that Alexander had drugged the 12-year-old victim and continued to deny the assault until DNA testing confirmed he had impregnated her and given her a sexually transmitted disease. Id. Alexander's parole was revoked on September 24, 2012. (Doc. 1, pp. 12-14; Doc. 15-4; Doc. 15-5).
Alexander appealed the revocation of his parole, but the National Appeals Board affirmed the Commission's action as well as its Category 7 rating and above-guidelines incarceration decision. (Doc. 1, p. 15; Doc. 15-6).
The Commission held an interim hearing in March 2016 and determined that there was no reason to change the previous decision to keep him in custody until expiration. (Doc. 1, pp. 16-17; Doc. 15-7). That decision was affirmed after Alexander's appeal. (Doc. 1, p. 18; Doc. 15-8).
A federal prisoner may challenge the execution of his or her sentence in a petition under 28 U.S.C. § 2241. See Romandine v. United States, 206 F.3d 731, 736 (7th Cir. 2000); Waletzki v. Keohane, 13 F.3d 1079, 1080 (7th Cir. 1994) ().
The United States Parole Commission is vested with broad discretion to grant or deny parole, as well as to make parole revocation determinations; relief from the Commission's action may only be granted in limited circumstances. See Walrath v. Getty, 71 F.3d 679, 684 (7th Cir. 1995). On review, the district court's "inquiry is only whether there is a rational basis in the record for the [Commission's] conclusions." Id.; see also Kramer v. Jenkins, 803 F.2d 896, 901 (7th Cir. 1986) (). A court cannot reverse a decision of the Commission"unless, absent procedural or legal error, it is arbitrary, irrational, unreasonable, irrelevant or capricious." Schieselman v. U.S. Parole Comm'n, 858 F.2d 1232, 1237 (7th Cir. 1988) (internal quotations omitted); see also Pulver v. Brennan, 912 F.2d 894, 896 (7th Cir. 1990); Storm v. U.S. Parole Comm'n, 667 F. App'x 156, 157 (7th Cir. 2016).
When the Commission revokes parole, it also has discretion to determine how much of the prisoner's remaining sentence must be served in custody before he or she may again be released on parole. Incarceration above the applicable guidelines may be ordered for "good cause," so long as the prisoner is provided "with particularity the reasons for [the] determination, including a summary of the information relied upon." 18 U.S.C. § 4206(c); 28 C.F.R. § 2.20(c) & (d). The legislative history of § 4206(c) suggests a broad reading of "good cause," to include grounds set forth by the Commission in good faith which are "not arbitrary, irrational, unreasonable, irrelevant, or capricious." Solomon v. Elsea, 676 F.2d 282, 287 (7th Cir. 1982).
Alexander asserts four grounds for habeas relief: (1) the Commission failed to comply with its statutory obligation or exceeded the limits of its statutory authority, and violated his due process rights, by categorizing his offense severity level based on the predicate rape charge instead of the reduced charge to which he pled guilty; (2) the Commission used the same information (the original rape charge) both to establish the parole guidelines and to justify a departure from the guidelines; (3) the Commission treated him differently by not giving him credit for superior programming and good conduct; and (4) his attorney's performance at the revocation hearing was deficient. (Doc. 1, pp. 7-10).
The Parole Commission is directed by statute to consider available and relevantinformation regarding a prisoner's criminal record in order to determine whether the prisoner should be released on parole, including presentence investigation reports and victim statements. 18 U.S.C. § 4207; 28 C.F.R. § 2.19(a). The Commission also must consider "such additional relevant information concerning the prisoner (including information submitted by the prisoner) as may be reasonably available." 28 C.F.R. § 2.19(b). "It is well established that the Parole Commission may look beyond the offense of conviction when determining a prisoner's offense severity rating or setting a parole date outside of the guidelines." Kramer v. Jenkins, No. 85-C-9926, 1986 WL 5658, at *3 (N.D. Ill. May 6, 1986), aff'd, 803 F.2d 896 (7th Cir. 1986), on reh'g, 806 F.2d 140 (7th Cir. 1986) (internal citations omitted). The Commission "may take into account any substantial information available to it in establishing the prisoner's offense severity rating, salient factor score, and any aggravating or mitigating circumstances, provided the prisoner is apprised of the information and afforded an opportunity to respond." 28 C.F.R. § 2.19(c). If the prisoner disputes the accuracy of the information, the Commission resolves the dispute using the preponderance of the evidence standard. Id.
Alexander argues that the Commission overstated his offense severity category of 7, resulting in a miscalculation of the guideline range.3 He further complains that the upward departure from the range was "arbitrary, capricious, and [an] abuse of its discretion" because it was based on the "alleged victim's inconsistent statements" regarding whether he drugged her and gave her a sexually transmitted disease. (Doc. 1, p. 7). In his Reply, Alexander asserts that at his hearing, the complete police report was not presented, and he later submitted "some missing exculpatory parts of the police report" to the Commission during his appeal. (Doc. 23, p. 3). He argues that the Commission failed to apply the preponderance of the evidence standard in resolvinghis dispute over the reliability of the evidence it considered. (Doc. 23, pp. 5-8).
The hearing officer's recommendation, and the decision to revoke Alexander's parole and keep him in custody until expiration, relied on information contained in the police reports from the rape case, specifically the evidence indicating that he drugged the 12-year-old victim before sexually assaulting her while she was in a "groggy, sleep like condition." (Doc. 15-4, p. 4; Doc. 15-5, pp. 1-2). The Supreme Court has stated that "letters, affidavits, and other material that would not be admissible in an adversary criminal trial" may be considered as evidence in the context of a parole revocation hearing. Morrissey v. Brewer, 408 U.S. 471, 489 (1972). Such material may include police reports. See Brothers v. U.S. Parole Comm'n, 5 F.3d 535 (9th Cir. 1993) (table); U.S. ex rel. Moore v. Conner, 284 F. Supp. 2d 1092, 1096 (N.D. Ill. 2003). Significantly, the hearing summary memorializes Alexander's decision not to comment on the offense conduct, and his understanding that the Commission would make its findings of fact ...
To continue reading
Request your trial