Love-El v. Johnston

816 F. Supp. 2d 24, 2011 U.S. Dist. LEXIS 114609, 2011 WL 4590787
CourtDistrict Court, District of Columbia
DecidedOctober 5, 2011
DocketCivil Action No. 2011-1186
StatusPublished

This text of 816 F. Supp. 2d 24 (Love-El v. Johnston) is published on Counsel Stack Legal Research, covering District Court, District of Columbia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Love-El v. Johnston, 816 F. Supp. 2d 24, 2011 U.S. Dist. LEXIS 114609, 2011 WL 4590787 (D.D.C. 2011).

Opinion

MEMORANDUM OPINION

AMY BERMAN JACKSON, District Judge.

Petitioner Alfonso Love-El brings this action to challenge his return to custody upon the execution of a parole violator warrant on March 28, 2011. Based on review of his petition for a writ of habeas corpus and the government’s opposition, the Court will deny the petition.

I. BACKGROUND

In the Superior Court of the District of Columbia, petitioner was convicted of distribution of cocaine and was sentenced to a term of seven to 21 years’ imprisonment. United States’ Opp’n to Pet’r’s Pet. for a Writ of Habeas Corpus (“Resp’t Opp’n”), Ex. 2 (Amended Judgment and Commitment Order, No. F-12021-91B) (D.C. Super. Ct. Apr. 27, 1994). Petitioner first was released on parole on October 10, 2000, id., Ex. 3 (Certificate of Parole), and over the years has had his parole revoked on three occasions. See id., Exs. 5, 9 and 14 (respectively, Notices of Action dated May 5, 2004, September 21, 2005, and May 7, 2007). 1 His most recent parole release occurred on September 14, 2009, and he was to remain under supervision through August 6, 2017. Id., Ex. 16 (Certificate of Parole). He was returned to custody on March 2, 2011 upon the execution of a parole violator warrant issued by the Unit *25 ed States Parole Commission (“USPC”) on February 3, 2011. See id., Ex. 19 (Warrant and Warrant Application).

Petitioner was charged with failure to submit to drug testing on 12 occasions, use of dangerous and habit forming drugs, and failure to report to his supervising officer as directed on two occasions. Resp’t Opp’n, Ex. 19 (Warrant Application dated February 3, 2011) at 2. On March 4, 2011, a hearing examiner conducted a probable cause hearing and found probable cause to believe that petitioner had committed the acts charged. See id., Ex. 20 (D.C. Probable Cause Hearing Digest dated March 4, 2011) at 2-3. No parole revocation hearing was scheduled at that time, however, because petitioner applied for a placement in a residential substance abuse treatment (“RSAT”) program. See id., Ex. 20 at 6. In relevant part, the RSAT application stated:

WAIVER OF A PROMPT REVOCATION HEARING: I understand that I cannot participate in RSAT unless I waive my right to a prompt revocation hearing to resolve the violation charge(s) against me----By signing this application, I am waiving my right to a revocation hearing within sixty (60) days of the probable cause finding. If this application is not approved by the [USPC] or I am not accepted for placement in RSAT despite the [USPC’s] approval, the [USPC] will consider my waiver of a prompt revocation hearing to be void. As noted earlier, I understand that if I am accepted into RSAT and unsuccessfully discharged from the program, the revocation hearing may be scheduled beyond the normal sixty (60) day period, but no later than 21 days from the date the [USPC] received notice of my unsuccessful discharge.

Id., Ex. 20A (Application for Placement in the Residential Substance Abuse Treatment Program) (emphasis removed). Petitioner, who was represented by counsel at the time, signed the application of March 4, 2011. Id., Ex. 20A. Parole revocation proceedings were then suspended pending petitioner’s participation in the RSAT program. Id., Ex. 21 (Memorandum from 5.T. Nasko, Case Analyst, to Commissioner, USPC, dated March 21, 2011) at 1.

Later that month, petitioner’s mother died, and at the family’s request, the USPC authorized his release to attend the funeral. See Resp’t Opp’n, Ex. 21. On March 21, 2011, petitioner was released from custody pursuant to the February 3, 2011 warrant and was reinstated to supervision. Id., Ex. 22 (Notice of Action dated March 21, 2011). The Notice of Action directed petitioner to report to his supervision officer immediately upon his release, see id., Ex. 22, and it did not specify that he was to return to custody thereafter. Id. Instead, USPC planned to handle the matter by reinstating petitioner for the purpose of attending the funeral on March 24, and then re-issuing a warrant the following day to return him to custody. Ex. 21 at 2.

A USPC case analyst prepared a second warrant application on March 24, 2011, which listed the same alleged violations of the terms of petitioner’s parole as were listed in the February 3, 2011 application. See Resp’t Opp’n, Ex. 23 (Warrant Application dated March 24, 2011) at 2. The warrant was executed on March 28, 2011, id. (Warrant), and a second probable cause hearing took place on April 5, 2011. Id., Ex. 24 (D.C. Probable Cause Hearing Digest dated April 5, 2011) at 1. The hearing examiner found probable cause to believe that petitioner committed the charged offenses, and noted petitioner’s eligibility for the RSAT program. Id., Ex. 24 at 6. Petitioner, who again was represented by counsel, signed a second RSAT *26 application on April 5, 2011, and this application also provided that he waive his right to a parole revocation hearing. Id., Ex. 25 (Application for Placement in the Residential Substance Abuse Treatment Program). The USPC held petitioner in custody, approved his RSAT placement, and postponed further revocation proceedings so that he could “participate and successfully complete the secure portion of the treatment program.” Id., Ex. 26 (Notice of Action dated April 27, 2011). 2

According to petitioner, the USPC erred by re-issuing the second “warrant citing the same violation[s] ... that had already been disposed of in a previous proceeding.” Pet. at 6. He believed that he had been reinstated to supervision in March 2011 and had no obligation to return to custody on his own. Through counsel, petitioner requested reconsideration of the decision, arguing that the USPC violated his right to due process by (1) issuing a second warrant based on “the exact same violations as the first warrant,” and by having him arrested twice for “the exact same alleged violations.” Id., Attach. (Letter to Isaac Fulwood, Chairman, USPC, from S.B. Brebbia, Staff Attorney, Public Defender Service for the District of Columbia, dated May 20, 2011) at 2. The request was denied. Resp’t Opp’n, Ex. 29 (Letter from S.J. Husk, Case Operations Administrator, USPC, to S. Brebbia dated June 7, 2011).

II. DISCUSSION

Petitioner contends that the March 24, 2011 parole violator warrant was invalid. See Pet. at 6. Citing Maslauskas v. U.S. Bd. of Parole, 639 F.2d 935 (3d Cir.1980), petitioner contends that the USPC “may not issue a warrant for a violation that has already been disposed of in a previous proceeding.” Additional Resp. to Resp’t’s Opp’n to Pet’r’s Writ of Habeas Corpus at 1. His reliance is misplaced. In Maslauskas,

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816 F. Supp. 2d 24, 2011 U.S. Dist. LEXIS 114609, 2011 WL 4590787, Counsel Stack Legal Research, https://law.counselstack.com/opinion/love-el-v-johnston-dcd-2011.