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JACKSON v. UNITED STATES PAROLE COMMISSION

August 15, 2005.

TERRY JACKSON, Petitioner,
v.
UNITED STATES PAROLE COMMISSION, et al., Respondents.



The opinion of the court was delivered by: FREDA WOLFSON, Magistrate Judge

OPINION

Petitioner Terry Jackson, currently confined at the Federal Correctional Institution at Fairton, New Jersey, has submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Respondents are the United States Parole Commission and Jonathan C. Miner, Warden of F.C.I. Fairton. Respondents submitted an "Answer and Memorandum of Law in Support of Respondents' Motion to Dismiss the Petition for a Writ of Habeas Corpus."

BACKGROUND

  The following facts are based upon a review of the record provided by Respondents as Exhibits to their Answer.

  In December of 1990, Petitioner was sentenced to nine years and 120 days imprisonment by the District of Columbia Superior Court. The District of Columbia Board of Parole paroled Petitioner from the sentence on September 16, 1993, to remain under supervision until May, 2000.

  In 1998, a warrant was issued charging Petitioner with violating conditions of parole due to an arrest for possession with intent to distribute heroin. He was transferred to the jurisdiction of the United States Parole Commission ("the Commission"). He was arrested on the parole violator warrant in March 2004.

  On June 2, 2004, the Commission held a parole revocation hearing. A "Proffer of Evidence" revealed that an agent of the Federal Bureau of Investigation, working with the local police department was advised that Petitioner was in possession of $3000.00 cash and a quantity of heroin. The FBI agent relayed the information to an Officer Cumba, who knew of the Petitioner, located Petitioner, and stopped him. Petitioner was indeed in possession of $2435.00 and 11 "zip locks" of heroin. Petitioner admitted that he possessed the heroin, but his attorney argued at the parole hearing that it was for Petitioner's own personal use, and that he was not intending to distribute the drugs. Petitioner's parole was revoked based on the charge of possession with heroin. The case was continued to consider the charge of possession with intent to distribute heroin, and to re-subpoena Officer Cumba, who did not appear for the initial revocation hearing for evidence relating to the intent to distribute charge.

  On June 14, 2004, the Commission issued a Notice of Action continuing the hearing with regard to the intent to distribute charge in order to re-subpoena the officer. However, one week later, on June 21, 2004, the Commission entered another Notice of Action stating that a good cause finding had been made not to re-subpoena the officer. The Commission vacated the portion of the prior Notice of Action directing that Officer Cumba be re-subpoenaed.

  The continued hearing was conducted on July 28, 2004. The officer again did not appear. Despite the fact that the order to subpoena the officer was vacated, the hearing examiner held that he could not make a finding with regard to the possession with intent to distribute charge without the additional evidence. However, a reviewing examiner disagreed, and stated that the Commission found "good cause" for the non-appearance of the officer. The "good cause" was that, based on the arrest report, the officer could contribute no evidence to the possession with intent to distribute charge. Thus, the reviewing examiner found that the officer was not an "adverse witness." The reviewing examiner then made a credibility determination and recommended that the Commission find that Petitioner possessed heroin with intent to distribute. The reviewing examiner based this finding on the fact that Petitioner admittedly possessed the 11 "zips" of heroin, as well as a large quantity of cash, and that in the reviewing examiner's opinion, it was unlikely that he would possess these items simultaneously with no connection between them.

  On August 17, 2004, the Commission entered a Notice of Action finding Petitioner in violation of possession with intent to distribute heroin, and assessing his sentence accordingly.

  In this habeas petition, Petitioner claims that he was denied the right to cross-examine the officer, an adverse witness, at his revocation hearing. He argues that the Commission did not find "good cause" for the non-appearance of the officer. Further, he argues that the Commission placed him in the wrong severity category, as the Commission failed to produce the witness to establish intent to distribute. DISCUSSION

  A. Standard of Review

  United States Code Title 28, Section 2241 provides in relevant part as follows:
(a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions.
* * *
(c) The writ of habeas corpus shall not extend to a prisoner unless — . . . (3) He is in custody in violation of the Constitution or laws or treaties of the United States. . . .
  A pro se pleading is held to less stringent standards than more formal pleadings drafted by lawyers. See Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972). A pro se habeas petition and any supporting submissions must be construed liberally and with a measure of tolerance. See Royce v. Hahn, 1 ...

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