UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
Marlon Andre Wilson, ) ) Petitioner, ) ) v. ) Civil Action No. 12-1700 (ESH) ) United States Parole Commission, ) ) Respondent. )
MEMORANDUM OPINION
Petitioner, proceeding pro se, filed this action on October 17, 2012, for a writ of habeas
corpus under 28 U.S.C. § 2241, while confined at the District of Columbia Jail on a parole
violator warrant executed on August 27, 2012. (Pet. at 1.) Petitioner claims that his current
confinement violates the due process clause and federal regulations because the United States
Parole Commission (“Commission”) denied him a timely probable cause hearing and failed to
provide counsel to represent him. (Id. at 2, 4-5, 7-9.) Petitioner seeks an appointment of counsel
to represent him “for revocation” and his release “pending revocation and probable cause.” (Id.
at 9.)
In its initial opposition, the Commission argues that petitioner’s claim based on the denial
of counsel is moot because the Federal Public Defender for the District of Columbia has agreed
to represent petitioner during revocation proceedings in the District of Columbia. (U.S. Parole
Commission’s Opp’n to Pet’r’s Pet. for a Writ of Habeas Corpus [Dkt. # 6] at 5-6.) In a
supplemental opposition filed on November 24, 2012, the Commission suggests that this action
is moot because the Commission has now “found probable cause to believe that the petitioner has violated the conditions of his release based on four violations of law.” (U.S. Parole
Commission’s Supplement to Its Opp’n to Pet’r’s Pet. for a Writ of Habeas Corpus ¶ 2 [Dkt. # 8]
& Ex. A. [Nov. 15, 2012, Letter].) The Court agrees and will therefore deny the petition and
dismiss the case on the grounds of mootness.
BACKGROUND
This action arises out of petitioner’s aggregate sentence of 24 to 36 months’ incarceration
followed by three years’ supervised release imposed by the Superior Court of the District of
Columbia on September 21, 2007. (Resp’t’s Opp’n., Ex. 1.) On May 28, 2010, petitioner began
serving the supervised release term. (Id. at 1 & Ex. 2.) On August 24, 2011, the Commission
issued a violator warrant for petitioner’s arrest, citing seven violations of the terms of petitioner’s
supervised release that included four charges of criminal behavior. (Resp’t’s Exs. 6, 7.) On
October 11, 2011, petitioner pleaded guilty in three separate cases in the Circuit Court for
Montgomery County, Maryland, to credit card fraud and theft, and on June 26, 2012, petitioner
was sentenced by the Circuit Court of Fairfax County, Virginia, to five years’ imprisonment
following his conviction for forging a public record on March 5, 2011. (Resp’t’s Exs. 8, 9, 10,
12, 13.)
The United States Marshals Service executed the Commission’s violator warrant on
August 27, 2012, by arresting petitioner and detaining him at the D.C. Jail. (Resp’t’s Ex. 6.)
The Commission supplemented its charges on August 29, 2012, and September 5, 2012, to
include petitioner’s convictions in Maryland and Virginia. (Resp’t’s Exs. 13, 14.)
The Commission scheduled a probable cause hearing on September 4, 2012. According
to the handwritten notes in the D.C. Probable Cause Hearing Digest, the Public Defender Service
for the District of Columbia (“PDS”) could not represent petitioner since he had filed suit against
2 that office. (Resp’t’s Ex. 15) [Dkt. # 6-16]); see 28 C.F.R. § 2.214(b) (designating PDS as
counsel for supervisees facing probable cause hearings). The probable cause hearing was
continued at petitioner’s request “to secure atty representation” either from his “Atty in MD” or
“Georgetown.” (Ex. 15 at 3.) Petitioner’s version of the proceeding is that the hearing examiner
denied “his request to go forward” on September 4, 2012, and “informed [him] that he needs
[sic] counsel to contact Georgetown law clinic.” Pet. at 8. In any event, the hearing was
continued to September 10, 2012 (Ex. 15 at 3), but occurred on September 11, 2012. (Resp’t’s
Ex. 16 (Examiner’s Memorandum).)
According to the hearing examiner’s account of the rescheduled hearing on September
11, 2012, petitioner refused to proceed without counsel but did not want to continue the hearing.
(Ex. 16.) Petitioner refused to sign a form indicating his request for or waiver of counsel. (Id.)
Therefore, the hearing examiner was “prompted” by petitioner’s “response and [] lack of
cooperation . . . to select on the Probable Cause Digest that [petitioner] will have a [combined]
Probable Cause/Revocation Hearing.” (Id.) Eventually, petitioner signed the form on November
2, 2012, and applied for representation by the Federal Public Defender for the District of
Columbia. (Resp’t’s Ex. 17.) On November 20, 2012, Federal Public Defender A. J. Kramer
informed Assistant United States Attorney Sherri Berthrong that he was no longer representing
petitioner “as a result of [petitioner’s] request that the office not represent him due to a conflict
of interest.” (Suppl. Opp’n, Ex. B.)
Meanwhile, the Commission informed petitioner on November 15, 2012, that it had
found “[p]robable cause . . . based on your guilty plea/conviction to each of [four listed]
charges.” (Id., Ex. A.) In a letter dated November 20, 2012, addressed to the Designation and
Sentence Computation Center, the Commission determined that petitioner “should be designated
3 to a Federal Bureau of Prisons institution for his revocation hearing” and requested that
petitioner be so designated. (Id., Ex. C.) According to the Bureau of Prisons’ Inmate Locator,
http://www.bop.gov, petitioner is currently at the Federal Detention Center in Philadelphia,
Pennsylvania.
DISCUSSION
District of Columbia prisoners are entitled to habeas corpus relief under 28 U.S.C. § 2241
if they establish that their “custody is in violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2241(c)(3). A delayed hearing to comport with due process does
not merit habeas relief absent a showing that the delay was “both unreasonable and prejudicial.”
Sutherland v. McCall, 709 F.2d 730, 732 (D.C. Cir. 1983). Even then, in most circumstances
applicable here “[t]he appropriate remedy . . . is a writ of mandamus to compel the Commission's
compliance with the [parole] statute not a writ of habeas corpus to compel release on parole or to
extinguish the remainder of the sentence.” Id.
Petitioner is not entitled to mandamus relief because the Commission has since found
probable cause to detain him for a revocation hearing. See Jones v. Wainwright, 744 F. Supp. 2d
341, 343-44 (D.D.C. 2010) (“[B]ecause the USPC already has conducted both [probable cause
and revocation] hearings, petitioner is not entitled to mandamus relief.”) (citing Colts v. U.S.
Parole Comm'n, 531 F.Supp.2d 8, 11 (D.D.C. 2008)). Furthermore, the delay in providing
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
Marlon Andre Wilson, ) ) Petitioner, ) ) v. ) Civil Action No. 12-1700 (ESH) ) United States Parole Commission, ) ) Respondent. )
MEMORANDUM OPINION
Petitioner, proceeding pro se, filed this action on October 17, 2012, for a writ of habeas
corpus under 28 U.S.C. § 2241, while confined at the District of Columbia Jail on a parole
violator warrant executed on August 27, 2012. (Pet. at 1.) Petitioner claims that his current
confinement violates the due process clause and federal regulations because the United States
Parole Commission (“Commission”) denied him a timely probable cause hearing and failed to
provide counsel to represent him. (Id. at 2, 4-5, 7-9.) Petitioner seeks an appointment of counsel
to represent him “for revocation” and his release “pending revocation and probable cause.” (Id.
at 9.)
In its initial opposition, the Commission argues that petitioner’s claim based on the denial
of counsel is moot because the Federal Public Defender for the District of Columbia has agreed
to represent petitioner during revocation proceedings in the District of Columbia. (U.S. Parole
Commission’s Opp’n to Pet’r’s Pet. for a Writ of Habeas Corpus [Dkt. # 6] at 5-6.) In a
supplemental opposition filed on November 24, 2012, the Commission suggests that this action
is moot because the Commission has now “found probable cause to believe that the petitioner has violated the conditions of his release based on four violations of law.” (U.S. Parole
Commission’s Supplement to Its Opp’n to Pet’r’s Pet. for a Writ of Habeas Corpus ¶ 2 [Dkt. # 8]
& Ex. A. [Nov. 15, 2012, Letter].) The Court agrees and will therefore deny the petition and
dismiss the case on the grounds of mootness.
BACKGROUND
This action arises out of petitioner’s aggregate sentence of 24 to 36 months’ incarceration
followed by three years’ supervised release imposed by the Superior Court of the District of
Columbia on September 21, 2007. (Resp’t’s Opp’n., Ex. 1.) On May 28, 2010, petitioner began
serving the supervised release term. (Id. at 1 & Ex. 2.) On August 24, 2011, the Commission
issued a violator warrant for petitioner’s arrest, citing seven violations of the terms of petitioner’s
supervised release that included four charges of criminal behavior. (Resp’t’s Exs. 6, 7.) On
October 11, 2011, petitioner pleaded guilty in three separate cases in the Circuit Court for
Montgomery County, Maryland, to credit card fraud and theft, and on June 26, 2012, petitioner
was sentenced by the Circuit Court of Fairfax County, Virginia, to five years’ imprisonment
following his conviction for forging a public record on March 5, 2011. (Resp’t’s Exs. 8, 9, 10,
12, 13.)
The United States Marshals Service executed the Commission’s violator warrant on
August 27, 2012, by arresting petitioner and detaining him at the D.C. Jail. (Resp’t’s Ex. 6.)
The Commission supplemented its charges on August 29, 2012, and September 5, 2012, to
include petitioner’s convictions in Maryland and Virginia. (Resp’t’s Exs. 13, 14.)
The Commission scheduled a probable cause hearing on September 4, 2012. According
to the handwritten notes in the D.C. Probable Cause Hearing Digest, the Public Defender Service
for the District of Columbia (“PDS”) could not represent petitioner since he had filed suit against
2 that office. (Resp’t’s Ex. 15) [Dkt. # 6-16]); see 28 C.F.R. § 2.214(b) (designating PDS as
counsel for supervisees facing probable cause hearings). The probable cause hearing was
continued at petitioner’s request “to secure atty representation” either from his “Atty in MD” or
“Georgetown.” (Ex. 15 at 3.) Petitioner’s version of the proceeding is that the hearing examiner
denied “his request to go forward” on September 4, 2012, and “informed [him] that he needs
[sic] counsel to contact Georgetown law clinic.” Pet. at 8. In any event, the hearing was
continued to September 10, 2012 (Ex. 15 at 3), but occurred on September 11, 2012. (Resp’t’s
Ex. 16 (Examiner’s Memorandum).)
According to the hearing examiner’s account of the rescheduled hearing on September
11, 2012, petitioner refused to proceed without counsel but did not want to continue the hearing.
(Ex. 16.) Petitioner refused to sign a form indicating his request for or waiver of counsel. (Id.)
Therefore, the hearing examiner was “prompted” by petitioner’s “response and [] lack of
cooperation . . . to select on the Probable Cause Digest that [petitioner] will have a [combined]
Probable Cause/Revocation Hearing.” (Id.) Eventually, petitioner signed the form on November
2, 2012, and applied for representation by the Federal Public Defender for the District of
Columbia. (Resp’t’s Ex. 17.) On November 20, 2012, Federal Public Defender A. J. Kramer
informed Assistant United States Attorney Sherri Berthrong that he was no longer representing
petitioner “as a result of [petitioner’s] request that the office not represent him due to a conflict
of interest.” (Suppl. Opp’n, Ex. B.)
Meanwhile, the Commission informed petitioner on November 15, 2012, that it had
found “[p]robable cause . . . based on your guilty plea/conviction to each of [four listed]
charges.” (Id., Ex. A.) In a letter dated November 20, 2012, addressed to the Designation and
Sentence Computation Center, the Commission determined that petitioner “should be designated
3 to a Federal Bureau of Prisons institution for his revocation hearing” and requested that
petitioner be so designated. (Id., Ex. C.) According to the Bureau of Prisons’ Inmate Locator,
http://www.bop.gov, petitioner is currently at the Federal Detention Center in Philadelphia,
Pennsylvania.
DISCUSSION
District of Columbia prisoners are entitled to habeas corpus relief under 28 U.S.C. § 2241
if they establish that their “custody is in violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2241(c)(3). A delayed hearing to comport with due process does
not merit habeas relief absent a showing that the delay was “both unreasonable and prejudicial.”
Sutherland v. McCall, 709 F.2d 730, 732 (D.C. Cir. 1983). Even then, in most circumstances
applicable here “[t]he appropriate remedy . . . is a writ of mandamus to compel the Commission's
compliance with the [parole] statute not a writ of habeas corpus to compel release on parole or to
extinguish the remainder of the sentence.” Id.
Petitioner is not entitled to mandamus relief because the Commission has since found
probable cause to detain him for a revocation hearing. See Jones v. Wainwright, 744 F. Supp. 2d
341, 343-44 (D.D.C. 2010) (“[B]ecause the USPC already has conducted both [probable cause
and revocation] hearings, petitioner is not entitled to mandamus relief.”) (citing Colts v. U.S.
Parole Comm'n, 531 F.Supp.2d 8, 11 (D.D.C. 2008)). Furthermore, the delay in providing
petitioner with a probable cause hearing was not unreasonable, since it was caused, not by the
Commission, but by petitioner’s conflicts with PDS and the FPD and his apparent unwillingness
to proceed without counsel. Even if petitioner could show unreasonable delay, he would not be
entitled to the writ because he has not shown the requisite prejudice. At the time of his arrest,
petitioner was (and remains) “under custody” for the convictions supporting the violator warrant.
4 Sutherland. 709 F.2d at 732. Therefore, petitioner cannot credibly assert that he would have
been released but for the delayed probable cause hearing or that the delay deprived him of a
hearing to which he was entitled. See 28 C.F.R. § 2.214(h) (“Conviction of any crime committed
subsequent to the commencement of a term of supervised release” is conclusive evidence of
probable cause, “and no probable cause hearing shall be conducted unless a hearing is needed to
consider additional violation charges that may be determinative of the Commission's decision
whether to revoke supervised release.”)
CONCLUSION
For the foregoing reasons, the Court finds petitioner’s grounds for habeas relief to be
moot and, therefore, will deny the petition and dismiss the case. A separate Order accompanies
this Memorandum Opinion.
/s/ ELLEN SEGAL HUVELLE United States District Judge
Date: January 15, 2013