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Evans v. Ortiz

United States District Court, D. New Jersey

October 29, 2018

HERBERT EVANS, Petitioner,

          Herbert Evans, No. 39557-007 FCI Ft. Dix Inmate Mail/Parcels East: Petitioner Pro se

          Anne B. Taylor Office of the United States Attorney Counsel for Respondent


          NOEL L. HILLMAN, U.S.D.J.

         Petitioner Herbert Evans (“Petitioner”), a prisoner presently incarcerated at the Federal Correctional Institution at Fort Dix in Fort Dix, New Jersey, has filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (the “Petition”). ECF No. 1. Petitioner alleges that he is being held wrongfully after being arrested for a violation of his supervised release because the U.S. Parole Commission does not have jurisdiction over him and the Parole Commission's imposition of a term of imprisonment and further supervised release for the violation is unlawful. See ECF No. 1. By order of Court, Respondent filed an Answer to the Petition (the “Answer”). ECF No. 13. The Petition is now ripe for disposition. For the reasons stated below, the Petition will be denied.

         I. BACKGROUND

         In 2007, Petitioner was convicted after a jury trial of aggravated assault while armed in violation of D.C. Code §§ 22- 404.01, 22-4502. See Evans v. United States, 12 A.3d 1 (D.C. App. 2011). On August 24, 2007, the Superior Court for the District of Columbia sentenced Petitioner to eighty-four months in prison with five years of supervised release. Id. See ECF No. 1 at 6-7. Petitioner completed his prison sentence on October 28, 2012, and began his five-year period of supervised release. See ECF No. 13 at 3. About six weeks later, on December 5, 2012, the Parole Commission issued a Notice of Action requiring Petitioner to participate in a drug aftercare program, a mental health program, and an anger management program. See id.

         While Petitioner was still on supervised release, a warrant was issued for his arrest on July 8, 2016 for (1) the use of dangerous and habit-forming drugs; (2) a violation of special condition of drug aftercare; (3) the failure to submit to drug testing; and (4) assault. See id. On July 12, 2016, Petitioner was arrested pursuant to that warrant. See id.

         The Parole Commission held Petitioner's revocation hearing on September 14, 2016. See id. The hearing examiner recommended that the Parole Commission find that Petitioner had violated his supervised release by: (1) using dangerous and habit forming drugs; (2) violating the special condition of his supervised release to attend mental health treatment as directed by his supervising officer; (3) failing to submit to drug testing as directed; and (4) committing assault. Id. The Parole Commission issued a Notice of Action in which it revoked Petitioner's supervised release and ordered him to serve thirty-six months in prison followed by twenty-four months of supervised release. Id. See ECF No. 1 at 6. The Notice of Action stated that the Parole Commission determined imprisonment for an amount of time above the otherwise applicable guideline range was appropriate because Petitioner is:

[A] more serious risk than indicated by the guidelines in that [Petitioner has] committed a new assault while on supervision for Aggravated Assault While Armed, in which [Petitioner] stabbed [his] victim multiple time in the back. Additionally, [Petitioner has] exhibited documented instances of aggressive, disruptive, hostile, and/or threatening behavior during this period of supervision and [Petitioner has] other prior convictions for Aggravated Assault and Assault. The Commission finds this pattern of violent behavior and aggressive behavior creates an unacceptable risk to public safety and [Petitioner's] continued incarceration, above the guidelines, is necessary to protect the community.

ECF No. 13 at 4-5.

         Petitioner appealed the Parole Commission's decision on January 13, 2017. See id. at 5. The Parole Commission's National Appeals Board reviewed Petitioner's administrative appeal and denied the appeal on April 7, 2017. See id.

         Petitioner filed this Petition in the U.S. District Court for the District of Columbia on November 16, 2017. ECF No. 1. Respondent moved to transfer the action to this District because Petitioner is imprisoned at FCI Fort Dix, ECF No. 8, and that motion was granted on February 20, 2018, ECF No. 9. Respondent filed an Answer. ECF No. 13. Petitioner has filed various letters that address some arguments in reply. ECF Nos. 14, 15, 17.


         A petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2241 is the proper way in which a federal prisoner may challenge parole proceedings, including the revocation of parole and the execution of the sentence post-revocation. See Callwood v. Enos, 230 F.3d 627, 632 (3d Cir. 2000); United States v. Kennedy, 851 F.2d 689, 690 (3d Cir. 1988) (“A challenge to the Parole Commission's execution of a sentence is properly raised in a habeas petition under 28 U.S.C.A. § 2241.”); Alston v. Stewart, No. 17-cv-1339, 2018 WL 1069360, at *6 (D. Md. Feb. 27, 2018) (“Numerous courts have treated § 2241 as the appropriate vehicle for individuals who, like Petitioner, are D.C. Code offenders challenging the decision of the USPC to revoke their supervised release or parole.”); Johnson v. Samuels, No. 06-cv-2233, 2007 WL 1575076, at *1-2 (D.N.J. May 30, 2007) (ยง 2241 petition proper way in ...

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