Gant v. Reilly

• Decision Date: 11 September 2002
• Docket Number: No. Civ.A. 02-858(RBW).,Civ.A. 02-858(RBW).
• Citation: 224 F.Supp.2d 26
• Parties: Byron GANT, Petitioner, v. Edward F. REILLY, Jr., et al., Respondents.
• Court: U.S. District Court — District of Columbia

224 F.Supp.2d 26

Byron GANT, Petitioner, v. Edward F. REILLY, Jr., et al., Respondents.

No. Civ.A. 02-858(RBW).

United States District Court, District of Columbia.

September 11, 2002.

COPYRIGHT MATERIAL OMITTED

Hastings Jones, Public Defender Service, Washington, D.C., for petitioner.

Daniel M. Cisin, United States Attorney's Office, Special Proceedings Section, Washington, D.C., for respondents.

MEMORANDUM OPINION

WALTON, District Judge.

This matter comes before the Court upon a Petition for a Writ of Habeas Corpus ("Pet.") that was filed pursuant to 28 U.S.C. § 2241 (2000), seeking review of the United States Parole Commission's ("U.S. Commission") decision to revoke the petitioner's parole. The petitioner alleges that: (1) this Court should entertain his petition because he is not required to exhaust the habeas remedies available to him in the Superior Court of the District of Columbia ("Superior Court") because only a United States District Court has authority to exercise jurisdiction over the U.S. Commission; and (2) the U.S. Commission failed to appropriately consider the evidence before it when rendering its decision to revoke the petitioner's parole. Upon consideration of the parties' submissions and for the reasons set forth below, the Court must grant the petition for a writ of habeas corpus.

I. Factual Background

The petitioner, Byron Gant, was convicted in Superior Court of robbery and unauthorized use of a vehicle, and was sentenced to concurrent terms of imprisonment of four to twelve years and one to three years, respectively. United States' Opposition to Petitioner's Petition for a Writ of Habeas Corpus ("Opp'n") at 3.¹ The petitioner was paroled in May 1998 by the District of Columbia's Board of Parole ("D.C.Board"), which thereafter revoked the grant of parole on October 13, 1999, due to the petitioner's illegal use of a controlled substance and failure to report to his parole officer. Id. Subsequently, the U.S. Commission ordered the petitioner's re-parole as of November 21, 2000, subject to his participation in a drug treatment program.² Id. However, the U.S. Commission rescinded the date of petitioner's re-parole and postponed it for one year, to November 21, 2001, because the petitioner had absconded from a half-way house where he had apparently been placed pending his release to parole. Id. at 3-4.

(1) The Petitioner's Re-Arrest

The circumstances that resulted in the parole revocation decision that is at issue in this case commenced less than one month after the petitioner was ultimately re-paroled, when he was re-arrested on December 14, 2001, and charged with possession with intent to distribute cocaine while armed and possession of marijuana. Id. at 4. According to the arrest report, two Metropolitan Police Department ("MPD") officers approached a vehicle in the District of Columbia in which the petitioner was sitting in the front passenger seat. The officers smelled "a strong pungent odor consistent with the smell of marijuana emitting from the vehicle." Id. (quoting Opp'n Exhibit ("Ex.") E). One of the MPD officers also observed the driver with an open container of alcohol and requested that the two occupants of the vehicle, the driver and the petitioner, exit the vehicle. Id. (quoting Opp'n Ex. E). The driver was arrested for possessing the open container of alcohol and a search and inventory of the vehicle incident to the driver's arrest

revealed in the center console between the driver and the passenger seats a brown paper bag containing 41 small ziplock bags (7 green and 34 clear) containing an off white rock like substance which field tested a positive color reaction for cocaine, two clear ziplock bags containing small clear ziplock bags, one clear plastic bag containing small green zip lock bags, and two razor blades ... Also recovered from the center console was a clear plastic bag and one piece of white paper containing a green weed like substance, which field-tested a positive color reaction for THC. A fully loaded .40 caliber Beretta semi-automatic gun ... was recovered in the seat pocket behind the front passenger. A black Coogi sweat jacket size 3X was on the back seat passenger side of the vehicle. Inside the right jacket pocket was [a] clear plastic bag containing large off white rock like substance weighing 26 grams, which a portion of, field-tested a positive color reaction for cocaine. [The petitioner and driver] were placed under arrest and charged with PWID crack cocaine while armed, possession of marijuana, and possession of drug paraphernalia.

Id. (quoting Opp'n Ex. E). The criminal charges against the petitioner were subsequently "no-papered" by the government on December 15, 2001.

(2) The Petitioner's Parole Revocation Hearing

Upon becoming aware of the petitioner's arrest, the U.S. Commission conducted a parole revocation hearing on April 4, 2002, based on the following parole violation charges: (1) the "use of dangerous habit-forming drugs" that was detected by four positive drug tests for cocaine in December 2001, and (2) violating the law by committing the offenses of possession of cocaine with intent to distribute while armed, possession of marijuana, and associating with a person involved in criminal activity, i.e., the person the petitioner was with at the time of his arrest. Hearing Transcript ("Tr.") at 9-10. At the outset of the hearing, the petitioner admitted to the first charge that was based on his positive drug tests. Id. at 9. Because the petitioner denied the second charge, the hearing examiner conducted a hearing, during which MPD Officer E. Bader, Municipal Division Officer Jeffrey Barlow,³ and the petitioner's probation officer Anthony Taylor testified. In addition to recalling the version of events contained in the arrest report at this hearing, Officer Bader provided several additional, relevant facts regarding this incident. The Court finds it significant that Officer Bader testified at the parole revocation hearing that the contraband was found in a car owned by the driver of the vehicle and that "[a]s soon as [she] lifted up the center console, which is between the driver's seat and the passenger seat, [she] lifted up that glove compartment console and observed a large quantity of drugs in the vehicle." Id. at 16. Officer Bader also testified that there were no drugs found on the petitioner, id. at 19, that she did not see the petitioner using any marijuana, id. at 26, and described the petitioner's reaction upon the drugs being found in the car as "he was upset; I mean surprised ... He kept saying they weren't his. He had just got into the car about five minutes ago, five minutes prior to this happening[,]" id. at 22. In addition, Officer Bader testified that the weapon discovered in the vehicle was located in the "map pocket behind the passenger seat" and that it was more accessible to the driver than to the petitioner. Id. at 23.

The petitioner's attorney proffered to the hearing examiner that had the petitioner's wife and daughter been able to attend the hearing, they would have testified that on the night in question they were all walking from the petitioner's wife's friend's house to the petitioner's house when he recognized a vehicle belonging to an acquaintance and decided to say "hello". Id. at 31-33. The petitioner declined to testify about the events in question, invoking his Fifth Amendment privilege on the advice of his attorney. Id. at 34.

At the conclusion of the hearing, the U.S. Commission's examiner held that his recommendation is to make a finding of violation on the charge that he admitted to as the cocaine, is abuse of dangerous habit-forming drugs, and to the law violation, which is possession with intent to distribute cocaine and possession of the gun. I think that Mr. Gant had constructive possession of both gun and drugs while he was in that car, and the testimony that I have, that the Commission has or that I heard, put him in the car with the gun and the drugs, and that is constructive possession.

Tr. at 70 (emphasis added). In his written report detailing his findings, the hearing examiner stated that "the testimony of Officer Bader and CSO Barlow was credible and sufficient to make a finding of the law violation charge that the subject was in constructive possession of the gun and the drugs that were found ..." Opp'n Ex. F at 4. In recommending that petitioner's parole be revoked, the examiner cited the fact that the petitioner "had only been under parole supervision for less than one month before this violation occurred. He has a long history of violent offenses and he has had the opportunity of parole on several occasions." Opp'n Ex. F at 5. On April 23, 2002, the U.S. Commission adopted the hearing examiner's findings of fact and issued an order revoking the petitioner's parole based upon the two charged violations and re-instated the petitioner's incarceration until the expiration of his sentence. Opp'n Ex. G at 1. The U.S. Commission's stated reasons were because the petitioner's

parole violation behavior [was] rated as Category Five severity because it involved both criminal and administrative violations, specifically Distribution or possession with intent to distribute 10 grams or more of free-based cocaine, the actual grams recorded was over 26 grams. [His] new salient factor score is 2 ... 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 outside the guidelines at this consideration is not found warranted.

Id. (emphasis added). Finally, it is note-worthy that in the respondents' opposition, they observed that "the Commission established petitioner's reparole guidelines under 28 C.F.R. § 2.81 based only upon the finding that petitioner had possessed with intent to distribute over 26 grams of free-based (crack) cocaine", Opp'n at 6 (...