Hill v. Johnson

• Court: District Court, District of Columbia
• Decided: December 21, 2021
• Docket: Civil Action No. 2020-1420
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ISIAH HILL, ) ) Petitioner, ) ) v. ) Civil Action No. 20-cv-01420 (EGS) ) LENNARD JOHNSON, et al., ) ) ) Respondents. )

MEMORANDUM OPINION This matter is before the Court on Petitioner Isiah Hill’s pro se petition for writ of habeas

corpus filed pursuant to 28 U.S.C. § 2241 (“Pet.”), ECF No. 1, with exhibits in support (“Pet. Exs.”),

ECF No. 1-1. Respondents, Lennard Johnson ––Warden of the District of Columbia Department of

Corrections and Hill’s current custodian–– and Patricia K. Cushwa ––Chairperson of the United States

Parole Commission (“the Commission”)–– have filed oppositions, ECF No. 9 (“Johnson Opp’n”);

ECF No. 12 (“USPC Opp’n”), in response to the petition. Despite the Court’s notice of his

opportunity to respond, see ECF No. 15 (Oct. 2, 2020 Order), Hill has declined to file any response

to Respondents’ oppositions. For the reasons discussed herein, the petition, and the relief requested

therein, will be denied, and this action will be dismissed.

I. BACKGROUND

On April 30, 1982, following a jury trial in the Superior Court of the District of Columbia,

Hill was convicted of armed kidnapping, armed robbery, grand larceny, assault with intent to kill,

assault on a police officer, and carrying a pistol without a license. See generally United States v. Hill

Nos. 1981 FEL 004208, 005489, 005490. He was then sentenced to a total of 70 years imprisonment.

See USPC Opp’n Ex. 2 (Pre-Hearing Assessment) at 1; see USPC Opp’n Ex. 3 (Bureau of Prisons’

Sentence Monitoring Computation Data) at 1.

1 Hill was released on parole on September 25, 2004, with an original full-term date of October

10, 2051. See USPC Opp’n Ex. 2 at 2. However, Hill’s parole was later revoked on three separate

occasions: (1) in May 2006 for a new law violation for assault, (2) in August 2006 for administrative

violations, and (3) in September 2008 for a new law violation for felony threats and destruction of

property. Id. Hill was re-paroled on November 24, 2009, but immediately commenced serving a

consecutive 90-month sentence arising from his conviction in Superior Court for attempted burglary,

felony contempt, and obstruction of justice. Id.; see USPC Opp’n Ex. 3 at 3. Hill completed his 90-

month sentence and was then re-released on parole on August 8, 2016, with a new full-term date in

April 2053. See USPC Opp’n Ex. 3 at 1.

On January 12, 2017, the Commission issued a new arrest warrant for Hill, arising from new

law violations for alleged destruction of property and threats to do bodily harm, and new alleged

administrative violations for failures to report. See USPC Opp’n Ex. 2 at 2; Pet. Exs. at 2–3, 6–8.

The warrant was not executed until nearly two years later, on January 4, 2019. See USPC Opp’n Ex.

2 at 2; USPC Opp’n Ex. 4 (Probable Cause Digest) at 1; Pet. Exs. at 5.

A probable cause hearing was held on January 11, 2019, and while the Hearing Examiner

found probable cause for all of the alleged violations, due to the age and/or status of the of the law

violations, the Examiner elected to consider only the administrative violations. See USPC Opp’n Ex.

2 at 2; USPC Opp’n Ex. 4. And because Hill was then only being charged with administrative

violations, the Examiner permitted him to apply for “PAVER,” the Commission’s pilot project for

administrative violators to obtain expedited resolution. A local revocation hearing was scheduled for

March 6, 2019, only to be held if Hill’s PAVER application was denied. See id.

However, on February 27, 2019, before Hill’s PAVER application had been decided, the

Commission was apprised of additional new alleged law violations. See USPC Opp’n Ex. 2 at 2;

USPC Opp’n Ex. 5 (Warrant Supplement). More specifically, the Commission learned that Hill had

2 since been charged with assault in a new matter in Superior Court. See id.; Pet Exs. at 4–5; see also

United States v. Hill, No. 2018 DVM 001553 (D.C. Super. Ct. filed Dec. 13, 2018) . It was further

revealed that Hill had, in December 2018, been charged with aggravated assault in another matter,

filed in Arlington County General District Court. USPC Opp’n Ex. 2 at 2–3; USPC Opp’n Ex. 5; Pet.

Exs. at 4. Based upon this new information, the Commission determined to supplement its existing

warrant, incorporating these new alleged law violations, and planned to evaluate all of the alleged

violations concomitantly at a combined probable cause and revocation hearing. See id. When Hill’s

defense attorney, Rayyan Ghuma, Esq., was informed that the Commission was also proceeding on

these new alleged law violations, she requested a continuance of the combined hearing to investigate

those charges and prepare accordingly. See USPC Opp’n Ex. 6 (2/28/2019 Emails). She further

requested that the parole violations “trail the Superior Court case.” Id. The Commission granted the

request to postpone the combined hearing and instructed Ms. Ghuma to reach out when she and Hill

were prepared to proceed with same. Id. On April 15, 2019, Hill was convicted of simple assault in

the pending Superior Court matter and sentenced to 90-days of incarceration. See Hill, No. 2018 DVM

001553 at “Court Trial Guilty” & “Sentence;” see also USPC Opp’n Ex. 7 (Judgment and

Commitment); Pet. Exs. at 1.

By January 2020, the Commission had not yet heard back from Ms. Ghuma regarding a new

combined hearing date, therefore, it contacted Ms. Ghuma to initiate rescheduling the hearing for

February 2020. See USPC Opp’n Ex. 8 (Jan. 8, 2020 Emails). Ms. Ghuma again requested a

continuance of the combined hearing, citing the pending appeal of the Superior Court conviction, see

Hill, No. 2018 DVM 001553 at “Notice of Appeal Filed By Defense” (filed May 13, 2019), and she

requested that the hearing be held after the resolution of that appeal, see USPC Opp’n Ex. 8.

On May 28, 2020, Hill initiated this lawsuit, demanding his immediate release, alleging that

he has been unfairly detained due to the Commission’s warrant and contending that was awaiting a

3 probable cause and parole revocation hearing for an unreasonable period of time ––over nine months–

– in contravention of his due process rights and the Commission’s own regulations. See Pet. at 2–3,

7–8. The Commission indicates that it was not aware of the lawsuit until it was served with the show

cause order in August 2020. See USPC Opp’n at 4.

Meanwhile, in July 2020, the Commission had extended an expedited revocation proposal of

19 months in custody (with credit for 19 months served) for all of the pending alleged parole

violations. See USPC Opp’n Ex. 9 (Expedited Revocation Proposal Response); USPC Opp’n Ex. 10

(Notice of Action). On July 13, 2020, Hill accepted the expedited revocation proposal and was

released from the Commission’s warrant to commence serving the consecutive 90-day sentence

imposed by the Superior Court. See id. On July 14, 2020, in accordance with the terms of the

expedited revocation agreement, the Commission revoked Hill’s parole and granted re-parole after

his service of the sentence. See USPC Opp’n Ex. 10.

II. DISCUSSION

The National Capital Revitalization and Self–Government Improvement Act, Pub. L. 105–33,

111 Stat. 712 (1997), established the authority of the Commission over the parole release and

revocation functions of District of Columbia felony offenders. See Franklin v. District of Columbia,

163 F.3d 625, 632–33 (D.C. Cir. 1998); see also Pate v. United States, 277 F. Supp. 2d 1, 3 n.2

(D.D.C. 2003) (explaining that, effective August 5, 2000, the Commission was endowed with the

remaining responsibilities of the former D.C. Board of Parole regarding supervision of parolees and

the revocation of parole release violations § 11231(a)(2) of the Improvement Act, codified at D.C.

Code § 24–131(a)(2)).

When facing potential revocation of supervised release, a parolee is generally entitled to basic

due process protections prior to such revocation, Hill v. Johnston, 750 F. Supp. 2d 103, 105–06

(D.D.C. 2010), typically consisting of “an informal hearing structured to assure that the finding of a

4 [supervised release] violation will be based on verified facts and that the exercise of discretion will

be informed by an accurate knowledge of the [releasee's] behavior[,]” Morrissey v. Brewer, 408 U.S.

471, 484 (1972).

Furthermore, the Commission’s regulations, as set forth at 28 C.F.R. § 2.101 et seq, require

that a probable cause hearing no later than five days after a parolee is retaken and held in custody on

a warrant issued by the Commission, if he has not yet been convicted of a new crime, see id. §

2.101(a). If the examiner finds probable cause, the Commission then schedules a “local” revocation

hearing ––to be held in the District–– within 65 days of the parolee's arrest. See id.; see also id. at §

2.101(d)(2). If the parolee is ineligible for a local revocation hearing, or has requested to be

transferred to an institution for his revocation hearing, an “institutional” revocation hearing shall be

scheduled within 90 days of the parolee's retaking. Id. at § 2.101(e). These hearings may be

postponed at the request of the parolee, see id. at § 2.101(b), (d)(2), and a postponed probable cause

hearing may be conducted as a combined probable cause and revocation hearing, id. at § 2.101(i).

Hill contends that that his custody was unlawful because he has been deprived of a timely

probable cause and revocation hearing, and he seeks his immediate release. See Pet. at 2–3, 7–8. But

an untimely parole hearing “is not itself a valid ground for immediate release[;]” instead, a releasee's

“remedy . . . is an action to compel a hearing.” 1 Hill, 750 F. Supp. 2d at 105–06 (citing Jones v. U.S.

Bureau of Prisons, 903 F.2d 1178, 1185 (8th Cir. 1990) and Sutherland v. McCall, 709 F.2d 730, 732

(D.C. Cir. 1983) (finding that the appropriate remedy for a delayed parole revocation hearing “is a

writ of mandamus to compel the [USPC's] compliance . . . not a writ of habeas corpus to compel

release . . . or to extinguish the remainder of the sentence” (emphasis in original)); see also Jones v.

1 For this same reason, the Court agrees with Respondent Johnson’s argument, see Johnson Opp’n at 1–3, that he is an improper respondent in this matter because he has no authority to provide Hill with any type of parole hearing, nor does he have the authority to compel the Commission to otherwise take action. 5 U.S. Parole Comm’n, 20 F. Supp. 3d 1, 3–4 (D.D.C. 2013) (finding same). Habeas relief would be

available “only . . . where a petitioner establishes that the [USPC's] delay in holding a revocation

hearing was both unreasonable and prejudicial.” Sutherland, 709 F.2d at 732 (denying habeas petition

absent showing that a 33–month delay prejudiced the petitioner's defense at the hearing).

Here, Hill neither alleges nor demonstrates that the delay has “prejudiced his defense at the

revocation hearing.” Id. at 733. “[T]he due process clause is violated only by a delay that is both

unreasonable and prejudicial,” Vactor v. U.S. Parole Comm'n, 815 F. Supp. 2d 81, 83 (D.D.C. 2011)

(citations omitted), and Hill simply fails to make out a viable due process claim, see Jones, 20 F.

Supp. 3d at 3–4 (citing Colts v. U.S. Parole Comm'n, 531 F. Supp. 2d 8, 11–12 (D.D.C. 2008) (where

a petitioner “presents no argument, compelling or otherwise, establishing that the delay in this case

either was unreasonable or has prejudiced him in any way,” he is not entitled to habeas relief for

untimely probable cause and revocation hearings)); see also Robinson v. U.S. Parole Comm'n, No.

05–2487, 2006 WL 2244629, at *2 (D.D.C. Aug. 3, 2006) (concluding that the petitioner “has not

shown any prejudice arising from the five-month delay between his arrest and the revocation hearing,

and the delay was not unreasonable”); White v. U.S. Parole Comm’n, No. 05-1811, 2005 WL

3555494, at * 3 (D.D.C. 2005) (finding that because the petitioner, like Hill, eventually admitted to

the violations, he failed to establish any prejudice as a result of the delayed revocation hearing).

And even if Hill had not otherwise failed to state a claim, his contention that he was deprived

of a timely hearing is meritless because ––after his first timely probable cause hearing, 2 application

for PAVER, and the subsequent amendment of the warrant–– the Commission made demonstrative

efforts to timely schedule the combined probable cause and revocation hearing, and the delays were,

2 The warrant was executed on Friday, January 4, 2019. See USPC Opp’n Ex. 2 at 2; USPC Opp’n Ex. 4; Pet. Exs. at 5. The first probable cause hearing was held on Friday, January 11, 2019, see USPC Opp’n Ex. 2 at 2; USPC Opp’n Ex. 4, within the required five business days, see 28 C.F.R. § 2.101(a). 6 in fact, solely created by postponements sought on Hill’s behalf by his own counsel. See USPC Opp’n

Exs. 6, 8; see also Fields v. Koppel, No. AW–13–cv–2321, 2013 WL 5276565, at *3 (D. Md. Sept.

17, 2013) (denying habeas relief and dismissing case where D.C. parolee claimed that he was denied

a timely revocation hearing, but the record showed that “the Commission made an attempt . . . to

provide him a revocation hearing, and he himself sought and was granted a continuance[.]”).

Moreover, because Hill has agreed to the USPC's expedited revocation proposal, see USPC

Exs. 9–10; 28 CFR § 2.66, 3 his claim for a revocation hearing is now moot. Jones, 20 F. Supp. 3d at

4 (citing Green v. Wainwright, No. 11–1534, 2012 WL 260411, at *2 (D.D.C. Jan. 30, 2012) (“The

petitioner's claim is now moot because he waived his right to these hearings by his acceptance of the

expedited revocation proposal.”); Proctor v. Wainwright, 828 F. Supp. 2d 215, 217 (D.D.C. 2011)

(collecting cases and finding that “importantly, petitioner waived his right to a revocation hearing by

accepting the [USPC's] expedited revocation proposal, and thus his claim is rendered moot.”), and;

Hill, 750 F. Supp. 2d at 106 (collecting cases and finding that “petitioner waived his right to a

revocation hearing by accepting the expedited revocation proposal, rendering this action subject to

dismissal as moot”)); see Blakeney v. Wainwright, No. 11–1964, 2011 WL 6749043, at *2 (D.D.C.

Dec. 23, 2011) (same); see also Mowatt v. U.S. Parole Comm'n, 815 F. Supp. 2d 199, 205 (D.D.C.

2011) (“Even if the Court were to agree with Plaintiff that his parole revocation hearing was untimely

held . . . the fact of his incarceration—i.e., the Commission's decision to revoke Plaintiff's parole—

has been established.”). always

Put simply, Hill cannot establish that the Commission has held him in custody in violation of

3 Pursuant to both the Commission’s regulations, see 28 CFR § 2.66, and the explicit terms of Hill’s own agreement made in accordance with same, an expedited revocation is predicated on the parolee’s (1) agreement to revocation of release, (2) acceptance of responsibility for the noted violations and consent to the sanctions proposed by the Commission, (3) waiver of right to a revocation hearing, and (4) waiver of right to appeal the revocation. See USPC Exs. 9–10 (emphasis added). 7 the Constitution or in contravention of its regulations because he has waived his right to a hearing by

his acceptance of the expedited revocation. See USPC Exs. 9–10; see also Green, 2012 WL 260411

at *2 (dismissing claims as moot even where the Commission admitted its failures to comply with

hearing deadlines) (citing Lane v. Williams, 455 U.S. 624, 631 (1982) (finding that an attack on

sentences which expired during course of habeas proceedings rendered the case moot) and Thorndyke

v. Washington, 224 F. Supp. 2d 72, 74 (D.D.C. 2002) (concluding that petitioner's claim of unlawful

custody before his revocation hearing and findings of fact on charge of parole violation found moot

after issuance of corrected Notice of Action)).

Finally, the extraordinary remedy of a writ of mandamus is available to compel an “officer or

employee of the United States or any agency thereof to perform a duty owed to plaintiff.” 28 U.S.C.

§ 1361. “[M]andamus is ‘drastic’; it is available only in ‘extraordinary situations.’ ” In re Cheney,

406 F.3d 723, 729 (D.C. Cir. 2005) (citations omitted). A petitioner bears a heavy burden of showing

that his right to a writ of mandamus is “clear and indisputable.” Id. Only if “(1) the plaintiff has a

clear right to relief; (2) the defendant has a clear duty to act; and (3) there is no other adequate remedy

available to the plaintiff,” Thomas v. Holder, 750 F.3d 899, 903 (D.C. Cir. 2014), is mandamus relief

granted. For all of the above stated reasons, Hill has failed to show that he has a clear right to relief

and Respondents have shown that they are under absolutely no obligation to act.

III. CONCLUSION

Hill’s acceptance of the expedited revocation proposal rendered his claim moot. Furthermore,

he has failed to establish that “[h]e is in custody in violation of the Constitution or law or treaties of

the United States,” 28 U.S.C. § 2241(c)(3), that the Commission violated its own policies, or that he

is otherwise entitled to mandamus relief, because the continuances were made at his own request and

he has failed to show any actual prejudice. Accordingly, the habeas petition and relief sought is

denied, and this action is dismissed. An order is issued separately.

8 ___________/s/_____________ EMMET G. SULLIVAN Senior United States District Judge

DATE: December 21, 2021