United States District Court, D. New Jersey
Herbert Evans, No. 39557-007 FCI Ft. Dix Inmate Mail/Parcels
East: Petitioner Pro se
B. Taylor Office of the United States Attorney Counsel for
L. HILLMAN, U.S.D.J.
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.
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.
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.
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
ECF No. 13 at 4-5.
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.
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.
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) (§ 2241 petition proper
way in ...