Hill v. Johnston ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DARRYL HILL,
Petitioner,
v.
Civil Action No. 10-1516 (HHK)
WARDEN JOHNSTON,
Respondent.
MEMORANDUM OPINION
This matter is before the Court on consideration of Darryl Hill’s petition for a writ of
habeas corpus and the government’s response to the Court’s order to show cause. For the
reasons discussed below, the petition will be denied.
I. BACKGROUND
On December 2, 2008, while serving a term of supervised release, petitioner was arrested
in the District of Columbia and was charged with assault and attempted second degree cruelty to
children.1 United States Parole Commission’s Opposition to Petitioner’s Petition for a Writ of
Habeas Corpus (“Resp’t Opp’n”), Ex. B (Warrant Application (Charge No. 4)) at 2 (page
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Petitioner allegedly “engaged in a verbal altercation with a minor victim” on
December 2, 2008, and during the course of the altercation petitioner “punched the victim in the
arm and chest with a closed fist.” Resp’t Opp’n, Ex. B (Warrant Application) at 2. The hearing
examiner did not find probable cause on the other three charges set forth in the Warrant
Application. Id., Ex. C (D.C. Probable Cause Hearing Digest dated March 6, 2009) at 2-3.
Although the criminal charges were dismissed for want of prosecution on March 2, 2009, the
hearing examiner found that “the evidence supporting the charge [was] sufficiently specific and
credible for the existence of probable cause.” Id. at 4.
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numbers designated by the Court). It appeared that petitioner thus had violated one or more
conditions of his release, and the United States Parole Commission (“USPC”) issued a violator
warrant on February 21, 2009, id. (Warrant), which was executed on March 4, 2009, id. (United
States Marshal’s Return to the United States Parole Commission). After a hearing, a USPC
hearing examiner found probable cause to believe that petitioner had committed a violation of
the terms of his supervision. Id., Ex. C (D.C. Probable Cause Hearing Digest dated March 6,
2009) at 2. Petitioner was released from custody and his supervised release status was
reinstated; he was to appear at a revocation hearing on April 29, 2009. Id., Ex. C at 7; see id.,
Ex. D (Notice of Action dated March 31, 2009).
The USPC issued a second warrant upon notice of petitioner’s arrest on July 4, 2009 for
assault . Petitioner allegedly “grabbed the victim by the throat[,] choking her and lifting her
from the ground.” Resp’t Opp’n, Ex. F (Warrant Application dated July 21, 2009) at 1. The
warrant was executed on July 24, 2009, id., Ex. F (Warrant for Return of Prisoner Released to
Supervision), and after a hearing, a hearing examiner found that “the evidence supporting the
charge [was] sufficiently specific and credible for the existence of probable cause.” Id., Ex. G
(D.C. Probable Cause Hearing Digest dated August 4, 2009) at 2. A local revocation hearing
had been scheduled for September 23, 2009, id., Ex. G at 5, and petitioner requested legal
representation, id., Ex. G (Statement of Parolee or Mandatory Releasee Concerning Request for
Counsel). The hearing was continued twice, id., Ex. H-I (Orders dated September 23, 2009 and
October 28, 2009, respectively), and the USPC continued the matter indefinitely until such time
as petitioner either retained counsel to represent him at the revocation hearing or waived counsel.
Id., Ex. K (Notice of Action dated February 25, 2010).
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On November 2, 2009, petitioner’s community supervision officer (“CSO”) prepared an
Addendum to the prior Alleged Violation(s) Report which in relevant part stated:
Allegation #1: Failed to Obey All Laws
On July 4, 2009 at approximately 11:35 pm, [petitioner] was arrested
by DC Metropolitan Police Officers and charged with Simple Assault
under DC Superior Court case number 2009-CMD-14659. On
October 21, 2009, [petitioner] was indicted by grand jury for the
felony charges of Assault with Intent to Kill, Aggravated Assault,
Assault with a Dangerous Weapon (4 counts), and Threats to Injure
a Person – Felony. These charges are currently pending under the
same case number with a status hearing scheduled for November 23,
2009 and trial scheduled for January 11, 2010.
Resp’t Opp’n, Ex. J (Alleged Violation(s) Report Addendum dated November 2, 2009) at 2.
Petitioner pled guilty to simple assault and threats to do bodily harm (a misdemeanor), and the
Superior Court of the District of Columbia imposed an aggregate sentence of 210 days’
imprisonment. Pet. at 1; Resp’t Opp’n, Ex. L (Judgment in a Criminal Case, United States v.
Hill, No. 2009-CMD-14659 (D.C. Super. Ct. Mar. 17, 2010)).
The USPC prepared, and petitioner accepted, a proposal for expedited revocation of
supervised release. Resp’t Opp’n, Ex. M (Expedited Revocation Proposal dated September 17,
2010) at 5-6 (page numbers designated by the Court). Pursuant to the proposal, petitioner
waived his right to a revocation hearing, accepted responsibility for his conduct, and consented
to revocation on the record. Id. Petitioner’s release has been revoked, and he is to serve a new
42-month term of supervised release following his release from custody. Id., Ex. N (Notice of
Action dated September 27, 2010).
II. DISCUSSION
“As of July 18, 2010, petitioner [had] been waiting 120 days to see a member of the
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[USPC] to have a revocation hearing on the aforementioned charges. Thus, the [USPC] has
violated petitioner’s constitutional right to due process.” Pet. at 2.2 In his petition for a writ of
habeas corpus, filed on September 9, 2010, he demanded “an Order for his immediate release.”
Id.
Because petitioner faced revocation of supervised release, he was entitled to basic due
process protections prior to revocation, typically “an informal hearing structured to assure that
the finding of a [supervised release] violation will be based on verified facts and that the exercise
of discretion will be informed by an accurate knowledge of the [releasee’s] behavior.”
Morrissey v. Brewer, 408 U.S. 471, 484 (1972). A delay in a revocation hearing is not itself a
valid ground for immediate release. Rather, petitioner’s remedy for such an alleged due process
violation is an action to compel a hearing. See Jones v. U.S. Bureau of Prisons, 903 F. 2d 1178,
1185 (8th Cir. 1990); Sutherland v. McCall, 709 F.2d 730, 732 (D.C. Cir. 1983) (finding that the
appropriate remedy for a delayed revocation hearing “is a writ of mandamus to compel the
[USPC’s] compliance . . . not a writ of habeas corpus to compel release . . . or to extinguish the
remainder of the sentence” (emphasis in original)). And absent a showing that the delay both
was unreasonable and actually prejudiced petitioner, see Sutherland, 709 F. 2d at 732, his
challenge to the timeliness of his revocation hearing is meritless. See, e.g., Colts v. U.S. Parole
Comm’n, 531 F. Supp. 2d 8, 12 (D.D.C. 2008) (finding that a petitioner who presented “no
argument, compelling or otherwise, establishing that the delay [by the USPC in conducting
2
Generally, “[a] local revocation hearing shall be held not later than 65 days from
the retaking of the releasee on a supervised release violation warrant.” 28 C.F.R. § 2.215(f). If a
releasee either requests or consents to a postponement, this time limit “shall be correspondingly
extended.” Id.4
probable cause and revocation hearings] either was unreasonable or has prejudiced him in any
way” was not entitled to habeas relief); Robinson v. U.S. Parole Comm’n, No. 05-2487, 2006
WL 2244629, at *2 (D.D.C. Aug. 3, 2006) (concluding that the petitioner “has not shown any
prejudice arising from the five-month delay between his arrest and the revocation hearing, and
the delay was not unreasonable”).
More importantly, petitioner waived his right to a revocation hearing by accepting the
expedited revocation proposal, rendering this action subject to dismissal as moot. Ogburn v.
U.S. Parole Comm’n, No. 06CV00192, 2006 WL 1933363, at *2 (W.D. Va. July 13, 2006)
(finding that, although the petitioner’s ten months in custody without receiving a revocation
hearing violated 28 C.F.R. § 2.101(e) and “was likely unreasonable under Morrissey, . . . [his]
claim was rendered moot by his acceptance of the expedited revocation proposal”); Caldwell v.
U.S. Parole Comm’n, No. 03cv.9116, 2005 WL 1153726, at *3 (S.D.N.Y. Apr. 13, 2005)
(Magistrate Report and Recommendation to dismiss habeas petition in part because “the
petitioner waived his right to a revocation hearing [by accepting the USPC’s expedited
revocation proposal and] his prior request for one no longer presents a live controversy”); see
also McDowell v. Bearor, No. 07-CV-500, 2009 WL 2871169, at *8 n.13 (N.D.N.Y. Sept. 2,
2009) (finding that plaintiff’s “involvement in and subsequent felony conviction for an inmate
assault rendered the final [parole] revocation hearing moot when the subsequent felony
conviction afforded an uncontestable basis for revocation”).
III. CONCLUSION
A District of Columbia prisoner is entitled to habeas corpus relief under 28 U.S.C.
§ 2241 if he establishes that his “custody is in violation of the Constitution or laws or treaties of
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the United States.” 28 U.S.C. § 2241 (c)(3). Petitioner does not establish that the USPC
violated his due process rights, and his acceptance of the expedited revocation proposal rendered
moot his claim arising from the USPC’s delay in conducting his supervision revocation hearing.
The habeas petition will be denied, and this action will be dismissed. An Order accompanies this
Memorandum Opinion.
HENRY H. KENNEDY, JR.
United States District Judge
DATE: November 13, 2010
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