Brown v. U.S. Parole Comm'n, Civ. Action No. 14-1777 (ABJ)

• Decision Date: 06 June 2016
• Docket Number: Civ. Action No. 14-1777 (ABJ)
• Citation: 190 F.Supp.3d 186
• Court: U.S. District Court — District of Columbia
• Parties: Raymond Brown III, Petitioner, v. United States Parole Commission, Respondent.

190 F.Supp.3d 186

Raymond Brown III, Petitioner,

v.United States Parole Commission, Respondent.

Civ. Action No. 14-1777 (ABJ)

United States District Court, District of Columbia.

Signed June 6, 2016

Raymond Brown, III, Washington, DC, pro se.

Sonali D. Patel, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Respondent.

MEMORANDUM OPINION

AMY BERMAN JACKSON, United States District Judge

In this action for a writ of habeas corpus, petitioner Raymond Brown III challenges the United States Parole Commission's authority to revoke his parole and to rescind credit for the eight years he spent on parole ("street-time credit"). Petitioner contends that the Commission has violated the separation of powers doctrine and the Constitution's ex post facto clause and double jeopardy clause. The Commission counters that petitioner's grounds for relief lack merit. See Gov't's Opp'n to Pet'r's Pet. for a Writ of Habeas Corpus [Dkt. # 6]. Since the Commission's authority over D.C. Code offenders is settled, and the challenged decision complied with D.C. law, the Court agrees that petitioner has stated no grounds for relief. Accordingly, the petition will be denied for the reasons explained below.

I. BACKGROUND

In December 1992, petitioner was convicted in the Superior Court of the District of Columbia of assault with a dangerous weapon, kidnapping while armed, and possession with intent to distribute heroin. He was sentenced to an aggregate prison term of three to fifteen years. Gov't Ex. 2.¹ Petitioner's custody beyond fifteen years stems from his failed parole supervision terms.

A. First Parole

On April 18, 1996, the then-D.C. Board of Parole released petitioner to parole supervision, where he was to remain until the expiration of his sentence on December 7, 2007. Ex. 3. Petitioner agreed to "narcotics surveillance" and an "outpatient drug program" as special conditions of his parole. Id. Four months after his release to parole, petitioner was arrested in the District for possession with intent to distribute heroin. Ex. 8. He was released on a personal recognizance bond. Id. A jury convicted petitioner of the new charge on April 21, 1998, and he was sentenced on June 10, 1998, to a prison term of two to six years, running consecutively to any other sentence. Exs. 5, 8; see United States v. Brown , 1996 FEL 007523 (Sup. Ct.).

On April 22, 1998, the Parole Board issued "a detainer warrant based on [the foregoing] allegations of criminal violation(s) of parole." Ex. 4. The warrant was executed the following day, on April 23, 1998, by petitioner's arrest. Ex. 8. The Parole Board conducted a parole revocation hearing on July 7, 1998, revoked petitioner's parole on July 30, 1998, and deferred consideration of reparole until petitioner became eligible on the aggregated sentences.² Ex. 7.

B. Second Parole

In November 1999, the Commission, having assumed parole responsibility over D.C. Code offenders, held an initial hearing for petitioner and scheduled a parole rehearing in June 2000.³ Ex. 9. On December 20, 2000, petitioner was released to parole supervision, where he was to remain until the expiration of his sentence, recalculated to be November 30, 2015. Exs. 10-11. Approximately eight years later, on April 8, 2008, the Commission issued a parole violator warrant based on the following four charges: use of dangerous and habit-forming drugs; failure to submit to drug testing; failure to report to supervision officer on several listed dates; and violation of the special condition of drug aftercare. Ex. 12.

The warrant was executed on April 30, 2008, by petitioner's arrest, and petitioner denied the charges at a probable cause hearing held on May 16, 2008. Ex. 14 at 1. However, on June 30, 2008, petitioner accepted the Commission's proposed expedited decision to revoke his parole, rescind his street-time credit, and set a reparole date of August 27, 2008, after petitioner's service of six months' incarceration. Petitioner accepted responsibility for the charged behavior, and he waived his right to a revocation hearing and to appeal the Commission's decision. In addition, petitioner agreed to special parole conditions consisting of drug, alcohol, and mental health aftercare programs. Exs. 15-16. On August 27, 2008, petitioner was released to parole supervision, where he is to remain until expiration of his sentence, recalculated to be December 28, 2022. Id. , Ex. 17.

C. Current Status

Petitioner is on parole under the supervision of the D.C. Court Services and Offender Supervision Agency. Gov't's Opp'n at 4 n.3. He filed this action on October 23, 2014, claiming that the Commission's recalculation of his sentence expiration date constitutes an unlawful extension of the Superior Court's sentence. See Pet. at 3-4. Petitioner insists that his "parole sentence ... has already expired." Pet'r's Mot. to Strike the Gov't's Opp'n Mot. and to Vacate the Pet'r's Parole Sentence Today at 16 ("Pet'r's Reply") [Dkt. # 8].

II. ANALYSIS

The extraordinary remedy of habeas corpus is available to District of Columbia prisoners if the prisoner shows that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). Petitioner's invocation of the separation of powers doctrine and the double jeopardy clause mistakes the role of the paroling authority, and his ex post facto claim is baseless.

A. Separation of Powers and Double Jeopardy

Petitioner's separation of powers and double jeopardy arguments go hand in hand. He contends that the Parole Commission "re-sentenced" him in violation of the double jeopardy clause and that act usurped the role of the judiciary. See Pet. at 3-4. District of Columbia law confers jurisdiction in the Commission to grant, deny, or revoke a District of Columbia offender's parole and to impose or modify his parole conditions. D.C. Code § 24–131(a), (c). Those functions do not usurp a judicial function because they are performed in "a separate administrative proceeding," Maddox v. Elzie , 238 F.3d 437, 445 (D.C.Cir.2001), as part of the execution of a court-imposed sentence. Thus, "courts in this Circuit have ... unanimously recognized that the Commission's exercise of its supervisory authority does not usurp the judicial function or offend the doctrine of separation of powers." Rahim v. U.S. Parole Comm'n , 77 F.Supp.3d 140, 145 (D.D.C.2015), citing Smallwood v. U.S. Parole Comm'n , 777 F.Supp.2d 148, 150 (D.D.C.2011) (collecting cases) (other citations omitted)); see Thompson v. District of Columbia Dep't of Corr. , 511 F.Supp.2d 111, 114 (D.D.C.2007), quoting D.C. Code § 24–131(c) (the Commission "does not usurp a judicial function when, as here, it acts ‘pursuant to the parole laws and regulations of the District of Columbia’ "); Hammett v. U.S. Parole Comm'n , No. 10–442, 2010 WL 1257669, at *1 (D.D.C. Apr. 2, 2010) (observing that "[t]his argument, and similar separation of powers arguments, have been raised often and rejected each time") (examining cases).

The double jeopardy clause "prohibits the executive branch from doubling down, bringing multiple prosecutions or seeking successive punishments against a defendant for the same criminal offense." United States v. Morrow , 102 F.Supp.3d 232, 248 (D.D.C.2015), quoting United States v. Cejas , 761 F.3d 717, 730 (7th Cir.2014). Since, as already stated, a parole proceeding is not a new criminal prosecution but rather a continuation of the original sentence that resulted in parole, "jeopardy does not attach." Hardy v. United States , 578 A.2d 178, 181 (D.C.1990), examining cases from the Fifth, Sixth and Eighth circuits. See U.S. v. DiFrancesco , 449 U.S. 117, 137, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980) (finding "no double jeopardy protection against revocation of [parole] and the imposition of imprisonment [because] [such] criminal sanctions do not involve the increase of a final sentence."); accord Johnson v. United States , 529 U.S. 694, 700, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000) (noting that "treating postrevocation sanctions as part of the penalty for the initial offense ... avoids [double jeopardy] difficulties"); Campbell v. U.S. Parole Comm'n. , 563 F.Supp.2d 23, 27 (D.D.C.2008) (finding the double jeopardy clause "simply not applicable to parole decisions"). So, the Court finds no grounds for issuing the writ based on either the separation of powers doctrine or the double jeopardy clause.

B. Ex Post Facto

An ex post facto violation occurs when a law "retroactively alter[s] the definition of crimes or increase[s] the punishment for criminal acts." Collins v. Youngblood , 497 U.S. 37, 43, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990). Petitioner contends that he was subjected to an ex post facto violation when the Commission applied its "own new federal guidelines to the petitioner's state sentence and [took away his] street-time credits." Pet. at 5. He posits that the rescission of the eight years he spent on parole "unlawfully extended [his sentence] expiration date to December 4, 2023 [sic], when [his] parole term would have expired in the year of 2015."⁴ Id. at 4.

Petitioner's ex post facto claim has no traction for two reasons. First, the rescission of street-time credit did not amount to increased punishment; it simply "returned [petitioner] to the position he would have been but for his release to parole." Thompson , 511 F.Supp.2d at 113, citing DiFrancesco , 449 U.S. at 137, 101 S.Ct. 426. Second, the controlling law went into effect in 1932, long before petitioner committed his offense, and it "was never repealed." Davis v. Moore , 772 A.2d 204, 215 (D.C.2001) (en banc). It is established that in 2008, when the instant revocation occurred, the rescission of street-time credit was required by D.C. Code § 24–406 (formerly § 24-206).⁵ SeeU.S. Parole Comm'n v. Noble , 693 A.2d 1084, 1094–1104 (D.C.1997), reinstated 711 A.2d 85 (D.C.1998) (en banc) (interpreting D.C. Code § 24–206(a) as requiring forfeiture of...