Allen v. O'Brien, Case No.: 1:14-cv-02545
| Decision Date | 22 June 2015 |
| Docket Number | Case No.: 1:14-cv-02545 |
| Court | U.S. District Court — Southern District of West Virginia |
| Parties | ALBERT L. ALLEN Petitioner, v. TERRY O'BRIEN, Warden, Federal Correctional Institution-Hazelton Respondent. |
Pending before the Court are Petitioner's Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241, (ECF No. 1), Petitioner's Motion for a Final Disposition in Support of His Title 28 U.S.C. § 2241 Application for a Writ of Habeas Corpus, (ECF No. 12), and Respondent's Response to the Order to Show Cause, wherein Respondent moves for the petition to be dismissed, (ECF No. 10). This case is assigned to the Honorable David A. Faber, United States District Judge, and was referred to the undersigned United States Magistrate Judge by Standing Order for submission of proposed findings of fact and recommendations for disposition ("PF & R") pursuant to 28 U.S.C. § 636(b)(1)(B). (ECF No. 4). For the reasons that follow, the undersigned respectfully RECOMMENDS that the Petition for a Writ of Habeas Corpus pursuant to28 U.S.C. § 2241 be DENIED, that Petitioner's Motion for a Final Disposition be DENIED, that Respondent's request for dismissal be GRANTED, and that this action be DISMISSED, with prejudice, and removed from the docket of the Court.
Petitioner Albert L. Allen ("Allen") is currently an inmate at the Federal Correctional Institution-Hazelton in Bruceton Mills, West Virginia. (ECF No. 13 at 1). After a jury trial held in the Superior Court for the District of Columbia, Allen was convicted of second-degree murder while armed, contrary to D.C. Code §§ 22-2103 (formerly § 22-2403) and 22-4502(a)(3) (formerly § 22-3202), and possession of a firearm during a crime of violence or dangerous offense, contrary to D.C. Code § 22-4504(b) (formerly § 22-3204). (ECF No. 1 at 2; ECF No. 10 at 12). On April 1, 1992, Allen was sentenced to fifteen years' to life imprisonment for the second-degree murder conviction and a consecutive term of five to fifteen years' imprisonment for the possession of a firearm conviction.2 (ECF No. 10 at 12-13).
After serving sixteen years in prison, Allen was scheduled for a parole hearing in front of a United States Parole Commission ("USPC") hearing examiner on September 5, 2007.3 (Id. at 19). Before the parole hearing, a prehearing report was prepared inAugust. The prehearing report describes Allen's criminal conduct, as detailed in Allen's presentence report:
At 1:00 a.m., the father of the victim was in his bed when he heard his daughter scream from outside of the house. He looked outside of his window and observed his son-in-law, [Allen], standing in front of his house at the curb, pointing a pistol at his daughter. He yelled, "Al, Al, please don't shoot my baby." The subject then fired three or four shots, and killed the victim, who was his estranged wife.
(Id. at 15). In the presentence report, the prosecution asserted that Allen was a "jealous" and "overly possessive husband" who used threats and violence to control the victim. (Id. at 16). The prosecution further indicated that three months prior to her murder, the victim moved into her parents' home across the street from Allen's home after separating from Allen. (Id.) The prosecution theorized that, on the night of the murder, Allen observed the victim leaving her parents' home with a friend's boyfriend and awaited the victim's return home at which point he shot her "at close range." (Id.) The prehearing report also notes that Allen was convicted of destruction of property after an incident at the victim's parents' home months before the murder. (Id.) As for Allen's conduct while in prison, the report states that Allen had received "excellent work evaluations," but he had failed to "take[] advantage of any counseling or training programs to address his anger management or violence." (Id. at 18).
At the September 2007 parole hearing, Allen's case manager and new wife testified on his behalf. (Id. at 19). Allen's case manager asserted that she had no issues with Allen, and Allen's wife indicated that she and Allen had a son together who needed Allen in his life and that she could help Allen with employment and finances. (Id.) Allen stated that he was sorry for what happened and apologized to the victim's family. (Id. at 20). He also asserted that the victim had a drug habit that had "messed up" her mindand caused her to "constantly tak[e] from him." (Id.) Allen described the conduct underlying his destruction of property conviction as "an accident." (Id.) With regard to his time in prison, Allen stated that he had participated in some programs, but had not enrolled in any programs related to his offense, such as victim awareness, anger management, stress management, or rational emotive therapy. (Id.) The hearing summary also indicates that Allen had not received any "DHO [Discipline Hearing Officer] Level Incident reports" during his incarceration. (Id. at 21). Notwithstanding, the hearing examiner recommended that the USPC deny parole and schedule Allen for a reconsideration hearing in September 2010, which would require Allen to serve a term of imprisonment above that recommended by the parole eligibility guidelines. (Id.) The hearing examiner found that a decision departing upward from those guidelines was warranted based on the location of the murder, Allen's flight and absconding for six months after the murder, his conviction for destruction of property shortly before the murder, his failure to participate in programs to address his "offense behavior," and the diminishment of the offense severity if Allen were paroled at that time. (Id.) On September 24, 2007, the USPC issued a notice of action denying parole and continuing Allen to a three-year reconsideration hearing in September 2010. (Id. at 23). The USPC noted that Allen's parole eligibility guideline range was 218-224 months and that serving thirty-six additional months would place him above that guideline range (230 total months); however, the USPC concluded that a decision above the parole eligibility guidelines was warranted for the same reasons that the hearing examiner described.4 (Id.)
On January 14, 2010, another parole hearing was conducted by a differenthearing examiner. (Id. at 26). The hearing summary from that proceeding indicates that a memorandum in Allen's file described two incidents between Allen and the victim, which were relayed to the prior hearing examiner by the victim's family. (Id.) The summary states that, on one occasion, Allen threw a brick through the victim's parents' front window, which led the victim to obtain a civil protection order against Allen. (Id.) The victim's family also recounted a time when Allen attempted to "run the victim ... off the road" while she was in her car. (Id.) In addition, the summary details the physical and psychological trauma experienced by the victim's family members as explained in the victim impact statements that they provided before the September 2007 hearing. (Id. at 27). Allen admitted to shooting the victim at the hearing, but insisted that the shooting was "the result of misunderstanding" after the two had been arguing and that the victim was "on drugs" at the time. (Id. at 28). He stated that he was sorry and remorseful, and that he had learned to control his actions while in prison. (Id.) The hearing examiner noted that Allen had not completed any new programming since his September 2007 hearing, but he was on the waiting list for an anger management program. (Id.) Allen also continued to receive positive work evaluations. (Id.) Nonetheless, the hearing examiner recommended that Allen be denied parole and that a rehearing take place in January 2013. (Id. at 29). The hearing examiner recognized that the D.C. Board of Parole's 1987 Guidelines ("1987 Guidelines") indicated parole should be granted, but found that a departure from the guidelines was warranted because there was "a reasonable probability that [Allen] would not obey the law if released, and that [Allen] would endanger the public." (Id. at 29-30). The hearing examiner emphasized that Allen required additional programming, such as anger management or victim impact classes, to "remain crime free in the community." (Id. at 30).
An executive review of the hearing examiner's decision was performed on March 1, 2010, and the executive reviewer agreed with the hearing examiner's recommendation, but modified the reasons for departure. (Id. at 31). The executive reviewer determined that a departure was appropriate due to Allen's "exceptional cruelty" to the victim and his lack of programming to address the underlying cause of his criminal conduct. (Id.) On March 13, 2010, the USPC issued a notice of action denying parole and continuing Allen for a reconsideration hearing in January 2013. (Id. at 32). The USPC noted that it was applying the 1987 Guidelines and departing from those guidelines because there was "a reasonable probability that [Allen] would not obey the law if released, and [Allen's] release would endanger the public safety." (Id.) The USPC emphasized that Allen needed more programming to address the underlying causes of his criminal conduct and to reduce his risk to the community. (Id.) The USPC urged Allen to participate in anger management and victim impact programs.5 (Id.) On July 8, 2010, the USPC issued a notice of action amending its March 2010 notice of action to add Allen's "exceptional cruelty" to the victim as a reason for departure from the 1987 Guidelines. (Id. at 34).
On May 13, 2011, Allen filed a § 2241 petition in this court challenging the USPC's March 2010 decision denying parole on Eighth Amendment and equal protection grounds. Allen v. Cauley, No. 1:11-0337, 2013 WL 2458526, at *1-*2 (S.D.W.Va. June 6, 2013). On March 1, 2012, United States Magistrate Judge R. Clarke VanDervort issued a PF & R recommending that Allen'...
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