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Hilliard v. Reilly

September 24, 2009

NEAL HILLIARD, PLAINTIFF,
v.
EDWARD F. REILLY, JR., DEFENDANT.



The opinion of the court was delivered by: Simandle, District Judge

OPINION

Plaintiff, who is serving a 60-month federal sentence imposed by the United States District Court for the District of Columbia, filed a paid Complaint against Edward F. Reilly, Jr., Chairman of the United States Parole Commission. In accordance with the requirements of 28 U.S.C. § 1915A, this Court has screened the Complaint to identify cognizable claims and will dismiss the Complaint for failure to state a claim upon which relief may be granted. See 28 U.S.C. § 1915A(b)(1).

I. BACKGROUND

In this Complaint, filed pro se, Plaintiff Neal Hilliard seeks damages from the Chairman of the U.S. Parole Commission, alleging he was incarcerated for six years due to the unconstitutional denial of parole. He also asks this Court to apply six years of credit toward the five-year federal sentence he is currently serving.

In addition to reviewing the Complaint and attachments, this Court has taken judicial notice of prior judicial dockets and opinions involving Plaintiff. See McTernan v. City of York, F. 3d , 2009 WL 2581430 at *3 (3d Cir. Aug. 24, 2009).

On September 17, 1988, the Superior Court for the District of Columbia sentenced Plaintiff to a sentence of twenty months to five years imprisonment after a jury found him guilty of distribution and possession with intent to distribute marijuana and PCP. See Hilliard v. Wiley, Civ. No. 02-1841 (JEC) report & recommendation (N.D. Ga. March 21, 2003). On May 25, 1989, the same court sentenced Plaintiff to a term of fifteen years to life based on his guilty plea to manslaughter while armed. Id.

In 1991, while Plaintiff was serving his D.C. sentences, the United States filed an indictment against him and several other defendants. See United States v. Hilliard, Crim. No. 91-0559-TFH-10 (D.D.C. filed Sept. 25, 1991). By judgment entered February 25, 1993, and based on Plaintiff's guilty plea to conspiracy to distribute and possess with intent to distribute drugs, United States District Judge George H. Revercomb sentenced Plaintiff to a 60-month term of incarceration, to run consecutive with the term of incarceration imposed by D.C. Superior Court for manslaughter in Docket No. 3432-88. Id. at Docket entry #1206 (Feb. 25, 1993). Plaintiff appealed, and on June 24, 1994, the District of Columbia Circuit affirmed. Id. at docket entry #1509 (June 24, 1994).

On July 1, 2002, Plaintiff, who was then incarcerated at USP Atlanta and serving his DC sentence, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 challenging the denial of parole on that sentence by the United States Parole Commission. See Hilliard v. Wiley, Civ. No. 02-1841 (JEC) (N.D. Ga. filed July 1, 2002). After considering the government's answer and Plaintiff's reply, on March 24, 2003, United States Magistrate Judge Janet F. King entered a final report and recommendation recommending denial of the petition. Id. at Docket entry #10. After considering Plaintiff's objections, by order and judgment entered April 18, 2003, United States District Judge Julie E. Carnes adopted the report and recommendation and entered judgment denying the petition. Id. at Docket entry nos. 12, 13.

The following is an outline of the facts found by the court in that proceeding. On January 5, 1999, Plaintiff applied to the United States Parole Commission for parole.*fn1 He received an initial parole hearing on March 7, 2001. The parole decision was deferred in order for the Commission to obtain information regarding Plaintiff's prior convictions. Noting that Plaintiff had been custody for 156 months, the hearing examiner calculated his guideline range as 249 to 309 total months in prison and recommended that Petitioner be continued to a 60-month reconsideration hearing from the date of the hearing. On September 25, 2001, the Commission agreed with the hearing examiner, denied parole, and set Plaintiff's reconsideration hearing for March 2006 or 60 months from the date of his initial parole hearing. However, on January 9, 2003, the Commission reopened the matter, vacated its decision, and remanded for a new hearing at which the Commission would assess whether Plaintiff's conviction for carrying a weapon involved felony violence.

Judge King issued her report and recommendation on March 21, 2003, before the Commission conducted a rehearing. In recommending the denial of habeas relief, Judge King rejected Plaintiff's claims as follows: (1) the Commission did not deny Plaintiff 172 days of jail credits from the time he was arrested in April 1988 until he was sentenced; (2) given the seriousness of Plaintiff's involvement in the "R Street Organization," the Commission properly exercised its discretion in refusing to advance his release date based on program achievement during incarceration; (3) the Commission did not act unlawfully in conducting Plaintiff's parole hearing 18 months after his parole eligibility date, given that the Commission did not have sufficient information on Plaintiff's prior offenses; (4) the Commission did not abuse its discretion and acted pursuant to federal regulations in setting the reconsideration date from the date of the hearing or departing from the three-year set-off rule; (5) the Commission did not violate the Ex Post Facto Clause in considering parole under the United States Parole Commission regulations, rather than the "less restrictive" D.C. parole guidelines; (6) the Commission properly considered Plaintiff's disciplinary infractions that were over four years old; (7) the Commission did not engage in impermissible "double counting;" and (8) because the Commission remanded to give Plaintiff an opportunity to respond to the consideration of his 1985 conviction as felony violence, Plaintiff's claim that the Commission improperly considered this conviction as felony violence is moot. See Hilliard v. Wiley, Civ. No. 02-1841 report & recommendation (N.D. Ga. Mar. 21, 2003). Judge Carnes adopted the report and recommendation after considering Plaintiff's objections. Plaintiff did not appeal from Judge Carnes' order denying habeas relief.

In April 2009, Plaintiff was paroled on his D.C. sentence and he began serving the 60-month federal sentence. (Compl. at p. 12.) On August 19, 2009, Petitioner submitted the instant Complaint to this Court with the $350.00 filing fee. The Clerk received it on August 21, 2009. Plaintiff asserts that his rights to due process were violated by the Chairman of the United States Parole Commission as follows: (1) improper use of federal parole guidelines to deny parole; (2) denial of 172 days of jail credit and failing to conduct the parole hearing until March 7, 2001, when his parole eligibility date was November 14, 1999; (3) use of disciplinary reports that were four years old; (4) he should have seen the D.C. Parole Board in 1998, before the U.S. Parole Commission assumed responsibility for D.C. Code offenders;

(5) the hearing examiner improperly double counted his points; (6) the denial of parole on the D.C. sentence was arbitrary, capricious and an abuse of discretion; (7) the Commission improperly categorized his 1985 conviction of carrying a pistol without a license as carrying a dangerous weapon; (8) the Commission arbitrarily started Plaintiff's hit from March 7, 2001, the date of the parole hearing, rather than the eligibility date; (9) improper reliance on a PSI report on another charge that exaggerated Plaintiff's role in a conspiracy; (10) violation of the Ex Post Facto Clause; (11) the Commission arbitrarily departed from the guidelines. Plaintiff seeks damages for six years of lost wages and unlawful incarceration, as well as credit against his current sentence for the six years which he should not have served on the D.C. sentence. (Id. at p0. 3, 12.)

II. STANDARD FOR DISMISSAL

The Prison Litigation Reform Act ("PLRA"), Pub. L. No. 104-134, §§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996), requires the Court, prior to docketing or as soon as practicable after docketing, to review a complaint in a civil action in which a prisoner seeks redress against a governmental employee or entity. See 28 U.S.C. § 1915A(a). The PLRA requires the Court to sua sponte dismiss any claim if the Court determines that it is frivolous, malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b). A claim is frivolous if it "lacks even an arguable basis in law" ...


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