Jackson v. Cross

• Court: District Court, District of Columbia
• Decided: April 18, 2013
• Docket: Civil Action No. 2012-1414
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) CLIFFORD JACKSON, ) ) Petitioner, ) ) v. ) Civil Action No. 12-1414 (RJL) ) CAROLYN CROSS, et al., ) ) Respondents. ) --------------------------- )

MEMORANDUM OPINION

tt~ April _ _ _ _ _ ,2013

This matter is before the Court on Clifford Jackson's petition for a writ of habeas corpus

and the government's response thereto. For the reasons discussed below, the petition will be

denied and this action will be dismissed. 1

I. BACKGROUND

Petitioner was released on parole on July 27, 2007. United States' Opp'n to Pet'r's Pro

Se Pet. for a Writ of Habeas Corpus ("Gov't Opp'n"), Ex. 2 (Certificate of Parole dated July 27

2007) at 1. He was arrested in the District of Columbia on February 12, 2011, and was charged

with reckless driving and possession of cocaine. ld., Ex. 3 (Alleged Violation(s) Report dated

Marcy 1, 2011) at 2. The United States Parole Commission ("USPC") charged petitioner with

two violations of the conditions of his parole: a Law Violation (Allegation #1) as evidenced by

1 Petitioner's "Motion to Request the Court to Stop Remaining Silent" [ECF No. 15] will be granted. the police report of his arrest, and Drug Use (Allegation #2) as evidenced by positive test results

for cocaine on eleven occasions. See generally id, Ex. 3 (Alleged Violation(s) Report; Notice of

Offender Arrest; and Metropolitan Police Department Arrest/Prosecution Report ). The USPC

issued a warrant for petitioner's arrest, see id, Ex. 5 (Warrant), and petitioner was returned to

custody on March 17, 2011. Id, Ex. 6 (Warrant for Return of Prisoner Released to Supervision).

After a hearing on March 22, 2011, a hearing examiner found probable cause to find that

petitioner committed the offenses charged. See generally id, Ex. 7 (D.C. Probable Case Hearing

Digest). A parole revocation hearing was scheduled for May 26, 2011, and the matter was

continued at the request of petitioner's counsel. Id, Ex. 8 (email exchange between Colleen

McCrystal and Thaddeus Hicks). Petitioner's counsel was to have submitted alternate dates for

the hearing, yet, according to the USPC, as of June 12, 2012, there was "no evidence that anyone

has contacted the [US PC] to reschedule this revocation hearing." !d., Ex. 9 (email to Colleen

McCrystal from Steve Husk). The USPC's warrant had been lodged as a detainer, and petitioner

remained in custody notwithstanding the issuance of a release order by the Superior Court of the

District of Columbia on June 6, 2012 upon the dismissal of the underlying criminal charges. See

id., Ex. 10 (Letter to USPC from Anthony Hinton, Community Supervision Officer, Court

Services and Offender Supervision Agency, dated June 21, 2012).

Petitioner's parole revocation hearing occurred on August 15, 2012. Id, Ex. 11 (Hearing

Summary) at 1. Petitioner admitted to the use of drugs, and the hearing examiner found that he

violated a condition ofhis parole release by using dangerous and habit-forming drugs. Id, Ex.

11 at 2. Based principally on the testimony of the arresting officer, the hearing examiner found

that plaintiff had committed two law violations: possession with intent to distribute crack cocaine

and reckless driving. Id, Ex. 11 at 2-3. The USPC adopted the hearing examiner's

2 recommendation, see id, Ex. 11 at 4, to revoke parole. Id, Ex. 12 (Notice of Action dated

August 31, 2012) at 1. Petition was to remain in custody until March 9, 2015, after service of 48

months' imprisonment. Id

II. DISCUSSION

Petitioner had been in custody since March 17, 2011. When he filed this action in August

2012, his parole revocation hearing had not yet occurred. He alleged that the USPC "violated

[its] own policies and procedures ... in reference to unreasonable delay in this matter." Pet. at 6.

He claimed that he was "being illegally detained and imprisoned," and demanded his immediate

release. Id

Under regulations applicable to District of Columbia Code offenders, ordinarily"[a] local

revocation hearing shall be held not later than sixty-five days from the retaking of the parolee on

the parole violation warrant." 28 C.F.R. § 2.102(£). However, "[i]fthe parolee requests and

receives any postponement, or consents to any postponement, or by his actions otherwise

precludes the prompt completion of revocation proceedings in his case, the [65-day period] shall

be correspondingly extended." Id Although the USPC did not schedule the revocation hearing

before the 65-day period expired, the hearing originally set for May 26, 2011, was continued at

the request of petitioner's counsel. In this case, the delay was due in part to petitioner's own

request for a continuance.

A delay in the revocation hearing "is not itself a valid ground for immediate release," and

instead a parolee's "remedy ... is an action to compel a hearing." Hill v. Johnston, 750 F. Supp.

2d 103, 105-06 (D.D.C. 2010); see Sutherlandv. 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

3 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)). The record

demonstrates that petitioner's final parole revocation hearing has taken place, and therefore he is

not entitled to mandamus relief. Habeas relief would be available "only ... where a petitioner

establishes that the [US PC' s] delay in holding a revocation hearing was both unreasonable and

prejudicial." Sutherland, 709 F.2d at 732. Petitioner's unsupported assertions of"grievous

loss," Pet. at 1, and "irreparable collateral damage to [his] life," id. at 4, do not suffice.

Now that petitioner has received the only relief available to him, the Court will deny the

habeas petition. See Rogers v. US. Parole Comm 'n, 816 F. Supp. 2d 7, 10 (D.D.C. 2011);

Simmons v. O'Brien, No. 7:07-cv-00193, 2007 WL 2669896, at *2 (W.D. Va. Sept. 6, 2007)

("While the delay in the instant case may have been unreasonable as the government concedes

that the hearing should have been conducted soon after [the petitioner] returned to federal

custody, [the court] find[s] that [his] claim was rendered moot by the ... rescission hearing"

which already had taken place). An Order accompanies this Memorandum Opinion.

~/- United States District Judge