McFadden v. United States Parole Commission

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ ) TRACY MCFADDEN, ) ) Petitioner, ) ) v. ) Civil Action No. 10-0597 (PLF) ) UNITED STATES ) PAROLE COMMISSION, ) ) Respondent. ) ____________________________________)

MEMORANDUM OPINION

In this action for a writ of habeas corpus, petitioner, a District of Columbia

prisoner, seeks credit for nine years of time he served while on parole (“street-time credit”). Pet.

at 5. In opposing the petition, the United States Parole Commission (“the Commission”) argues

that petitioner is not so entitled. Upon consideration of the parties’ submissions, and for the

following reasons, the Court agrees with the Commission and therefore will deny the petition and

dismiss this case.

I. BACKGROUND

Petitioner is serving an aggregate sentence of 21 years’ imprisonment based on

consecutive sentences imposed by the Superior Court of the District of Columbia in July and

October 1989. See Resp’t.’s Ex. 1.1 He was first released to parole supervision on October 28,

1995. Ex. 2. In May 2000, the District of Columbia Parole Board issued a parole violator

1 All of the exhibits relied upon are attached to the United States Parole Commission’s Opposition to Petitioner’s Petition for a Writ of Habeas Corpus [Dkt. No. 5]. warrant, which was executed in August 2000. Ex. 4. Following a preliminary hearing on August

30, 2000, see id., petitioner agreed on October 4, 2000, to an expedited parole revocation

proceeding where he “waive[d] [his] right to a revocation hearing . . . accept[ed] responsibility

for conduct charged against [him] in the warrant application and . . . accept[ed] the proposed

Parole Commission decision. . . .” Ex. 5 at 3. Pursuant to the agreement, the Commission, by

Notice of Action dated October 6, 2000, revoked petitioner’s parole, forfeited his street-time

credit and scheduled a reparole date after his service of six months’ imprisonment. Ex. 6. The

foregoing events were similarly repeated in February 2001, when petitioner was released again to

parole supervision, and in December 2002, when his parole was revoked, in June 2003 (paroled)

and August 2004 (revoked), in October 2006 (paroled) and August 2008 (revoked), and in March

2009 (paroled). See Exs. 7, 11, 12, 17, 20, 24, 25.

On March 5, 2010, the Commission issued a parole violator warrant based on

petitioner’s failure to report to his supervising officer and his violation of a parole condition to

participate in anger management. Ex. 26 at 3. Following execution of the warrant on March 9,

2010, and a probable cause hearing three days later, on March 12, 2010, petitioner again agreed

to an expedited revocation proceeding where he “accept[ed] an Expedited Decision [to] (1)

revoke[] [his] parole . . . and (2) impose[] a parole date/term of imprisonment . . . no greater than

the bottom of [his] guideline range . . . at least 2 but not more than 5 months.” Ex. 28. Petitioner

acknowledged that his “guidelines [were] undetermined.” Id. at 3. Petitioner also agreed to

“accept whatever decision the Commission [made] with regard to [street-time credit],” id. at 2,

and waived his right to appeal the decision. He maintained the right to request amendment of a

determination he believed to be in error with regard to, inter alia, the guideline range. Id. at 2.

2 Pursuant to the foregoing agreement, the Commission, by Notice of Action dated

April 27, 2010, revoked petitioner’s parole, forfeited street-time credit earned between August

26, 2009 and March 8, 2010, and set a presumptive parole date of March 7, 2011, after

petitioner’s service of 12 months’ imprisonment – the bottom guideline range of 12 to 16

months. Ex. 29. Petitioner, through counsel, sought reconsideration of the guideline range,

claiming that he believed it to be 8 to 12 months, but the Commission denied his request because

the expedited agreement stated that the guideline range would be determined later. Exs. 30, 31.

Meanwhile, petitioner filed this action on April 19, 2010, from the District of Columbia Jail. See

Pet. Caption.

II. DISCUSSION

The Commission argues correctly that petitioner is not entitled to the restoration of

any street-time credit that was forfeited prior to May 2009 because District of Columbia law

specifically provided that “[i]f the order of parole shall be revoked . . . , [t]he time a prisoner was

on parole shall not be taken into account to diminish the time for which he was sentenced.

D.C. Code § 24-406(a). Through a series of cases starting with Noble v. United States Parole

Commission, 82 F.3d 1108, 1109-10 (D.C. Cir. 1996), such claims seeking the restoration of

forfeited street-time credit were finally resolved against District of Columbia prisoners. See

United States Parole Commission v. Noble, 693 A.2d 1084, 1094-1104 (D.C. 1997), reinstated

711 A.2d 85 (D.C. 1998) (en banc) (interpreting D.C. Code § 24-206(a), now D.C. Code § 24-

406)(a), as requiring forfeiture of street-time credit on certification of question from the District of

Columbia Circuit); McKee v. United States Parole Commission, 214 Fed.Appx. 1, 2 (D.C. Cir.

3 2006) (“Noble provided an authoritative statement of the meaning of D.C. Code § 24-206(a)

(1981) that was consistent with the statutory language.”)

Effective May 20, 2009, D.C. Code § 24-406 was amended to require the

Commission’s forfeiture of street-time credit only “[i]f a parolee is convicted of a crime

committed during a period of parole.” D.C. Code § 24-406(c)(2) (2009). The amendment does

“not apply to any period of parole that was revoked prior to May [20], 2009.” D.C. Code § 24-

406(d). The remaining issue in this case, then, is the applicability of the amendment to

petitioner’s latest revocation in April 2010. The amended statute authorizes the Commission to

forfeit a revoked parolee’s earned street-time credit “for the period of time that [it] determines that

the parolee failed or refused to respond to [any reasonable] request, order, summons, or warrant.”

D.C. Code § 24-406(c)(3). Petitioner was charged with failing to report to his supervising officer

“on 8-26-2009 as directed or any date thereafter.” Resp’t.’s Ex. 26 (emphasis added). By

agreeing to an expedited revocation, petitioner waived his right to contest the charge. The

Commission therefore was within its authority to forfeit the time, from August 26, 2009 to March

8, 2010, that petitioner failed to comply with its reporting requirement.

Finding no basis for issuing the writ, the Court will deny the petition for a writ of

habeas corpus and dismiss the case. A separate Order accompanies this Memorandum Opinion.

/s/_______________________ PAUL L. FRIEDMAN DATE: September 27, 2010 United States District Judge