United States District Court, D. New Jersey
Timothy Robinson, FCI Fairton Fairton, NJ, Petitioner pro se.
Elizabeth Ann Pascal, Office of the U.S. Attorney, Camden, NJ, Counsel for Respondent.
NOEL L. HILLMAN, District Judge.
Petitioner Timothy Robinson, a prisoner currently confined at the Federal Correctional Institution in Fairton, New Jersey, has submitted a Petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, claiming that the United States Parole Commission (the "Commission") improperly refused to credit him for time spent in federal custody. Petitioner names as party respondent, Warden J. T. Shartle, as the person having custody over him pursuant to 28 U.S.C. §§ 2242 and 2243. For the foregoing reasons, the Petition will be denied.
A. Parole Procedure for D.C. Offenders
Because Petitioner is challenging re-parole decisions made by the Commission regarding a sentence imposed by a District of Columbia Superior Court, it is appropriate for this Court to begin with a discussion of the Commission's authority and parole procedures.
As a result of the National Capital Revitalization and Self-Government Improvement Act of 1997, jurisdiction over parole decisions for District of Columbia offenders was transferred from the District of Columbia Parole Board to the Commission. See The National Capital Revitalization and Self-Government Improvement Act, Pub. L. No. 105-33, § 11231(a)(1), 111 Stat. 712, 745 (effective August 5, 1998), codified at D.C. Code § 24-131(a)(1) (2001). In making parole release decisions, the Commission interprets and implements the District of Columbia Official Code and has authority to amend and supplement the parole laws of the District of Columbia. See D.C. Code § 24-131(a)(1).
A parolee who is convicted of a new offense while on parole may be charged with a parole violation by the Commission. See 28 C.F.R. § 2.44. A revocation hearing ensues and, if the Commission decides to revoke parole, as a corollary, it must make several other related determinations. See 28 C.F.R. § 2.52. Among other things, the Commission must make a re-parole determination. Id . In other words, the Commission must determine the length of time which a violator must serve as a result of his parole violation before he is again paroled.
The Commission uses the re-parole consideration regulations set forth in 28 C.F.R. § 2.21 to create guidelines and establish consistency in the exercise of discretion. See 28 C.F.R. §§ 2.20, 2.21. Section 2.21(c) states that "[t]ime served on a new state or federal sentence shall be counted as time in custody for re-parole guideline purposes." 28 C.F.R. § 2.21(c).
It is important to note that re-parole is distinctly different from the length of time which remains to be served on the original sentence as a result of the parole violation. See Id .; 28 C.F.R. §§ 2.21(c), 2.52(c); see also, Bowen v. U.S. Parole Comm'n, 805 F.2d 885, 888 (9th Cir. 1986) (explaining the difference between sentence credit and re-parole guidelines credit); Berg v. U.S. Parole Comm'n, 735 F.2d 378 (9th Cir. 1984); Staege v. U.S. Parole Comm'n, 671 F.2d 266 (8th Cir. 1982). Thus, in addition to re-parole, the Commission must also determine the effect that revocation of parole will have on the time remaining to be served on the parolee's original sentence (the "violator term").
In making this determination, section 2.21(c) is again instructive and it directs that credit for time in custody for re-parole guidelines purposes "does not affect the computation of the expiration date of the violator term as provided by §§ 2.47(e) and 2.52 (c) and (d)." Id . Section 2.52 then states, in relevant part, that
[i]t is the Commission's interpretation of 18 U.S.C. 4210(b)(2) that, if a parolee has been convicted of a new offense committed subsequent to his release on parole, which is punishable by any term of imprisonment, detention, or incarceration in any penal facility, forfeiture of time from the date of such release to the date of execution of the warrant is an automatic statutory penalty, and such time shall not be credited to the service of the sentence.
28 C.F.R. § 2.52(c). Thus, Section 2.52(c) clearly delineates the time period that is forfeited upon conviction of a new offense while on parole; and the plain language of this section provides no indication that the amount of time forfeited is affected by a parolee's custody status during this time.
B. Petitioner's Factual and Procedural History
The factual background of this case is not in dispute. However, due to multiple offenses, convictions, and parole violations, the procedural history of this case is lengthy and somewhat convoluted. Below, the Court sets forth the facts and procedural history necessary for the Court's disposition.
In 1993, the District of Columbia Department of Corrections aggregated Petitioner's District of Columbia Superior Court sentences in Case Nos. F-6745-91 & F-14327-91 (collectively, the "D.C. Offenses") into a sentence of 19 years, 6 months, less 520 days jail credit, for a minimum term of 6 years, 6 months.
On November 5, 1997, the District of Columbia Board of Parole paroled Petitioner from this sentence and ordered that Petitioner's parole for the D.C. Offenses would expire on October 11, 2011. (Decl. of Gervasoni 4, Cert. of Parole, Ex. 2, ECF No. 7-1). However, while he was incarcerated on his D.C. Offenses, Petitioner was convicted by the United States District Court for the Eastern District of Virginia for Possession of Marijuana with Intent to Distribute and Prisoner in Possession of Marijuana (the "Marijuana Offense"). He was sentenced to 60-months imprisonment, with 3 years' supervised release. Therefore, on November 5, 1997, Petitioner was paroled to a federal detainer lodged by the United States Marshals Service for the Marijuana Offense and he immediately began service of that sentence upon his release on parole for the D.C. Offenses.
On April 8, 2002, Petitioner transitioned to home confinement for the Marijuana Offense. Shortly thereafter, however, on April 13, 2002, Petitioner was arrested by District of Columbia Police and charged with Attempted Possession with Intent to Distribute Cocaine, Case No. F-2369-02 (the "Cocaine Offense").
Despite his arrest, Petitioner was released from federal custody to supervised release on the Marijuana Offense on April 30, 2002. Because he failed to report to his supervision officer as required by the terms of his parole for the D.C. Offenses, on May 1, 2003 the Commission issued a warrant charging Petitioner with a violation of parole for the D.C. Offenses.
Additionally, as a result of the April 13, 2002 arrest, Petitioner was charged with a violation of his supervised release on the Marijuana Offense and his supervised release was revoked. On December 13, 2002, he was sentenced to 8 months' imprisonment.
After his release from federal custody on the violation of supervised release for the Marijuana Offense, Petitioner was arrested on July 9, 2003 on the Commission's warrant for violation of parole for his D.C. Offenses. He received a probable cause hearing on July 15, 2003, during which the Commission declined to revoke parole, and instead reinstated Petitioner to parole and ordered him to report for supervision.
On September 4, 2003, the Commission issued a new parole violation warrant charging Petitioner with violations of parole based on the April 13, 2002 arrest and Petitioner's alleged use of illegal drugs. On September 16, 2003, Petitioner was arrested on this warrant and, following a probable cause hearing on September 23, 2003, the Commission again declined to revoke his parole. On December 11, 2003, Petitioner was again reinstated to parole supervision for the D.C. Offenses.
On February 27, 2004, the District of Columbia Superior Court sentenced Petitioner on the Cocaine Offense to one-year imprisonment with 5 years of supervised release to follow. On April 15, 2004, the Commission issued a warrant charging Petitioner with a violation of parole for the D.C. Offenses based on his conviction and sentencing on the Cocaine Offense.
Petitioner came into custody on that warrant on December 28, 2004 and a revocation hearing ensued on May 9, 2005. As a result of this hearing, the Commission revoked Petitioner's parole and ordered that he receive no credit towards his D.C. Offense sentence for time spent on parole. Thus, Petitioner forfeited all time from the date of his release on parole, November 5, 1997, to the date the parole violator warrant was executed, December 28, 2004. Petitioner was ordered to serve 36 months in custody for his parole violation with a presumptive re-parole date of November 2, 2006.
Following his re-parole on November 2, 2006, the Commission issued another parole violation warrant on March 31, 2008, charging Petitioner with violating the conditions of parole for his D.C. Offenses by using illegal drugs on multiple occasions and for a new law violation relating to an arrest that occurred on September 8, 2007. Petitioner was taken into custody on June 2, 2008 and received a probable cause hearing on June 6, 2008. Petitioner accepted an Expedited Revocation Proposal and, based upon the use of drugs charge, the Commission again revoked Petitioner's parole on July 23, 2008. The Commission also ordered that Petitioner forfeit all credit for time spent on parole, and ordered that Petitioner continue to a presumptive re-parole date of July 31, 2009 after 14 months of service. When Petitioner was released on July 31, 2009, he was released to a detainer lodged by the Prince George's County Sheriff's Office.
In December 2011, Petitioner was arrested for Attempted Distribution of a Controlled Substance (Heroin), Case No. 2011-CF2-023990 (the "Heroin Offense"). In addition to other events, this arrest led the Commission to charge Petitioner with a parole violation for which a violator warrant was executed on February 1, 2012. While in custody on the parole violator warrant, Petitioner was found guilty of the Heroin Offense in the District of Columbia Superior Court and, on June 4, 2012, he was sentenced to 24 months' imprisonment.
Thereafter, as the result of a hearing conducted on November 29, 2012, Petitioner's parole for his D.C. Offenses was revoked on January 11, 2013 based on his conviction for the Heroin Offense. Again the Commission ordered that Petitioner receive no credit for time spent on parole and required that he serve 40 months to a presumptive re-parole date of February 1, 2015. The Commission also noted that Petitioner would be paroled to his consecutive sentence for the Heroin Offense.
While serving time on the violation of parole for his D.C. Offenses based on his conviction for the Heroin Offense, Petitioner filed the instant Petition.
C. Summary of Procedural History
Each time Petitioner's parole for the D.C. Offenses was revoked, his original sentence was not credited with any time from the date of his release, November 5, 1997, to the date the parole violator warrant was executed. Also, each time Petitioner's parole was revoked, he was re-paroled and the expiration date of his sentence for the D.C. Offenses was recalculated. Finally, upon his last parole revocation on January 11, 2013, the Commission determined that upon ...