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Benjamin King v. Edward F. Reilly

March 7, 2011

BENJAMIN KING, PETITIONER,
v.
EDWARD F. REILLY, JR., ET AL., RESPONDENTS.



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

NOT FOR PUBLICATION

OPINION

Petitioner filed a Petition for a Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2241. Respondents Federal Community Defender Office for Eastern District of Pennsylvania and Angela Haynes have filed a motion to dismiss (docket entry 9).

Respondent Edward F. Reilly, Jr., has filed an answer to the petition (docket entry 12). For the following reasons, the Court will deny the claims concerning Petitioner's parole revocation and calculation of sentence. The motion to dismiss will be dismissed as moot. Petitioner's ineffective assistance of counsel claim will be dismissed, without prejudice to Petitioner filing it in the proper forum.

BACKGROUND

On June 1, 1998, Petitioner was sentenced by the District of Columbia Superior Court to 10 years imprisonment for destruction of property. On November 2, 2001, he was paroled but was released to a detainer from the State of Maryland. Petitioner was eventually released from Maryland custody to serve his parole in the community.

On September 21, 2004, Petitioner was arrested in the District of Columbia and charged with second-degree assault, and as a fugitive from justice. As a "DC Code" Offender, the United States Parole Commission ("USPC" or "Commission") had jurisdiction over the case, and the authority to make parole decisions.*fn1 On September 30, 2004, the Commission issued a warrant charging Petitioner with violating his conditions of parole for the assault charge, and for using illegal drugs. On December 9, 2004, the warrant was supplemented with two additional assault charges. On May 12, 2008, the Commission again supplemented the warrant with two additional charges for various drug offenses. Meanwhile, in accordance with the Commission warrant, after his release from his state sentences on April 16, 2008, Petitioner was transferred to the custody of the Commission.

On August 18, 2008, the Commission conducted a revocation hearing. Petitioner admitted to certain charges, and the hearing examiner considered the quantity of cocaine involved in one of the charges to determine Petitioner's offense severity. After reviewing police reports, the hearing examiner confirmed that Petitioner's offense involved 115.2 grams of cocaine, constituting a Category Six severity violation. Combining that Category Six rating with Petitioner's Salient Factor Score of 3 points, the hearing examiner recommended that parole be revoked and that Petitioner serve in the guideline range of 78-100 months prior to re-parole.

On September 18, 2008, Petitioner's parole was revoked. Petitioner received no credit for the time spent on parole, and was ordered to serve 100 months, to March 6, 2012. Petitioner appealed the decision, arguing that (1) since he did not plead guilty to possessing a particular amount of drugs his violation should not be rated a Category Six; and (2) Petitioner's role in the drug conspiracy was peripheral warranting a rating of a Category Five instead of Category Six. On December 15, 2008, the National Appeals Board rejected these arguments and affirmed the hearing examiner's decision. The Board found that there was no documentary evidence indicating that the factual basis for Petitioner's plea was different than what the police report revealed as to the amount of drugs, and second, that the documentary evidence did not support that argument that Petitioner's role was peripheral in the drug conspiracy.

On August 19, 2009, Petitioner filed this habeas petition. Petitioner argues that the Commission violated his due process rights by rating him a Category Six, and that he received ineffective assistance of counsel at the revocation hearing. In response to this Court's Order to Answer the petition, respondents Haynes and Defender Office filed a motion to dismiss on August 9, 2010. Respondent Schultz and Reilly filed an answer to the petition on September 7, 2010. On November 1, 2010, Petitioner filed opposition to the motion to dismiss.

DISCUSSION

A. Standard of Review

Petitioner seeks a writ of habeas corpus, pursuant to 28 U.S.C. ยง 2241(c)(3). That section states that the writ will not be extended to a prisoner unless "he is in custody in violation of the ...


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