Carter-El v. Fulwood, Civil Action No. 10–1778 (RBW).

• Decision Date: 19 October 2011
• Docket Number: Civil Action No. 10–1778 (RBW).
• Citation: 819 F.Supp.2d 38
• Parties: George E. CARTER–EL, Petitioner, v. Isaac FULWOOD, Jr. et al., Respondents.
• Court: U.S. District Court — District of Columbia

819 F.Supp.2d 38

George E. CARTER–EL, Petitioner,

v.Isaac FULWOOD, Jr. et al., Respondents.

Civil Action No. 10–1778 (RBW).

United States District Court, District of Columbia.

Oct. 19, 2011.

George E. Carter–El, Washington, DC, pro se.

Sherri Lee Berthrong, Kerslyn D. Featherstone, U.S. Attorney's Office, Washington, DC, for Respondents.

MEMORANDUM OPINION

REGGIE B. WALTON, District Judge.

In this action for a writ of habeas corpus, the petitioner, currently a District of Columbia parolee, alleges that the United States Parole Commission (“USPC”) failed “to conduct his procedural due process hearings [sic] within 90 days” of the execution of a parole violator warrant. Petition for Writ of Habeas Corpus By a Person in Custody in the District of Columbia (“Pet.”) at 8. ¹ In addition, the petitioner claims that he “should not have been placed under the Parole Act....” Id. The USPC has opposed the petition and the petitioner has replied. Upon consideration of the parties' submissions and the entire record, the Court finds no basis for issuing the writ and, therefore, will deny the petition.

I. BACKGROUND

On January 29, 1986, the petitioner pled guilty in the Superior Court of the District of Columbia to one count of armed robbery, and, on March 18, 1986, was sentenced to a prison term of nine to 27 years. See United States Parole Commission's Opposition to Petitioner's Petition for a Writ of Habeas Corpus (“Resp't's Opp'n”) [Dkt. # 10], Exhibit (“Ex.”) A (Memorandum Opinion and Judgment); Ex. A–1 (Sentence Monitoring Computation Data as of 1–30–2009). On December 15, 1987, the petitioner was convicted following a jury trial in Superior Court of two counts of armed robbery and one count of carrying a pistol without a license (“CPWL”); he was sentenced on March 24, 1988, to a prison term of 13 to 40 years. See id., Exs. A, A–1. On October 17, 2001, following a remand of the petitioner's criminal case to the Superior Court, the District of Columbia Court of Appeals ultimately affirmed the armed robbery and CPWL convictions. See Carter v. United States, 791 A.2d 23 (D.C.2001); Carter v. United States, 684 A.2d 331 (D.C.1996).

On several occasions, the petitioner unsuccessfully sought collateral relief from his convictions pursuant to D.C.Code § 23–110. See Resp't's Opp'n, Exs. A, A–2 (Order). Currently, the petitioner's aggregate sentence of 22 to 67 years' imprisonment based on the foregoing Superior Court sentences imposed in March 1986 and March 1988 is set to expire on April 3, 2053. Id., Ex. A–1 at 2, 4–6.

On January 30, 2009, the petitioner was released to parole supervision under conditions set by the USPC. Id., Ex. B (Certificate of Parole). On December 7, 2009, the USPC issued a parole violator warrant based on the petitioner's alleged illegal use of a controlled substance, his failure to submit to mandatory drug testing, and his arrest for several criminal offenses; the warrant was executed on April 29, 2010. See id., Exs. C, D. Following a probable cause hearing on May 4, 2010, at which the petitioner was represented by counsel, the USPC's hearing examiner found probable cause and scheduled a parole revocation hearing on June 7, 2010. See id., Ex. E. When the petitioner, his counsel, and all but one of the requested witnesses failed to appear at the scheduled revocation hearing, the hearing examiner surmised that “there was a mix up in the case,” continued the matter, and indicated that the “hearing must be heard sometime before 7/25/10....” Id., Ex. F. In November 2010, the USPC realized that the petitioner had not received a revocation hearing and, through a series of e-mails with the petitioner's attorney, rescheduled the hearing for February 10, 2011. Id., Ex. G. Meanwhile, the petitioner filed the instant habeas petition on October 12, 2010, while detained at the District of Columbia Jail.

Following the petitioner's parole revocation hearing on February 10, 2011, the USPC found no parole violation and ordered the petitioner's release again to parole supervision. See United States Parole Commission's Supplemental Opposition to Petitioner's Petition for a Writ of Habeas Corpus (“Resp't's Supp. Opp'n”) [Dkt. # 13], Ex. 1 (Hearing Summary); Ex. 2 (Notice of Action). The petitioner's current address of record is a residence in the District of Columbia.

II. DISCUSSION

District of Columbia prisoners and parolees are entitled to habeas corpus relief under 28 U.S.C. § 2241 if they establish that their “custody is in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3) (2008); see Goodman v. Waldren, No. 08–2163, 2009 WL 4823986, at *2 (D.D.C. Dec. 10, 2009) (“The concept of legal custody is a category that encompasses various degrees of restraint[,]” from imprisonment to parole). The petitioner does not refute the USPC's argument that notwithstanding the delay in providing a parole revocation hearing, the resulting claims are moot. See Resp't's Supp. Opp'n at 2–3. Given that the petitioner received a hearing and was immediately reinstated to parole supervision, the Court agrees that the claims arising from the revocation proceedings are moot. See Sutherland v. McCall, 709 F.2d 730, 732 (D.C.Cir.1983) (“The appropriate remedy for a [delayed revocation hearing] is a writ of mandamus to compel the Commission's compliance with the statute not a writ of habeas corpus to compel release on parole or to extinguish the remainder of the sentence.”); Colts v. U.S. Parole Comm'n, 531 F.Supp.2d 8, 11 (D.D.C.2008) (“[B]ecause the USPC already has conducted both [probable cause and revocation] hearings, petitioner is not entitled to mandamus relief.”); Fletcher v. United States Parole Comm'n, 550 F.Supp.2d 30, 44 (D.D.C.2008) ( “A case is considered moot either when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” (quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969))).

The petitioner also challenges the USPC's authority over him. Because the petitioner remains under parole supervision, this claim is not rendered moot by the petitioner's release to parole. See Spencer v. Kemna, 523 U.S. 1, 7–9, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) (“Subsistence of the [habeas] suit requires ... that continuing ‘collateral consequences' ... be either proved or presumed.”); Goodman, 2009 WL 4823986, at *1 n. 1 (“Because [the petitioner's] habeas challenge is to the calculation of his full term expiration date, the petition was not rendered moot by his release.”). The petitioner argues that the sentencing judge did not impose a term of parole and “[c]onsequently, the Attorney General [in whose custody he was placed] had disregarded the court's judgement [sic] commitment order by modifying it to place petitioner under the Parole Act that was not legislated through Congress.” Pet. at 10.

The petitioner's argument lacks a basis in law and reason. Under the law in effect at the time of the petitioner's sentence, the judge was required to impose a “sentence ... for a maximum period not...