Bethea v. Wainwright ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JAMES E. BETHEA,
Petitioner,
v. Civil Action No. 10-1295 (JDB)
UNITED STATES PAROLE
COMMISSION, et al.,
Respondents.
MEMORANDUM OPINION
This matter is before the Court on James Bethea’s petition for a writ of habeas corpus, the
government’s response to the Court’s order to show cause and petitioner’s reply. For the reasons
discussed below, the petition will be denied.
I. BACKGROUND
Petitioner’s Allegations
Petitioner, a District of Columbia Code offender, alleges that the Federal Bureau of
Prisons (“BOP”) has calculated his sentence incorrectly. According to petitioner, the sentences
imposed by the Superior Court of the District of Columbia (“Superior Court”) were to be served
concurrently, not consecutively, such that the issuance and execution of the parole violator
warrant by the United States Parole Commission (“USPC”) occurred after his aggregate sentence
expired. He contends that his current custody is therefore unlawful, and demands his immediate
release.
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The Government’s Response to the Order to Show Cause
In the Superior Court, petitioner pled guilty to robbery and assault with a dangerous
weapon, and the court imposed a one-to-three-year term of imprisonment for the assault,
followed by a three-year term of probation. United States’ Opposition to the Petitioner’s Petition
for a Writ of Habeas Corpus (“Resp’t Opp’n”), Ex. 3 (Amended Judgment and Commitment
Order, United States v. Bethea, No. F-391-83 (D.C. Super. Ct. Dec. 6, 1983)). Although the
Superior Court imposed a five-to-fifteen-year term of imprisonment for the robbery, it suspended
the execution of this portion of the sentence. Id.
Less than three years later, while petitioner was serving his term of probation, he was
convicted of another robbery. Resp’t Opp’n, Ex. 4 (Judgment and Commitment Order, United
States v. Bethea, No. F-3827-85 (D.C. Super. Ct. Mar. 17, 1986)). The Superior Court imposed
a sentence of three-to-nine-year term of imprisonment, to be served consecutively to any other
sentence petitioner then was serving. Id. This conviction prompted the Superior Court to revoke
petitioner’s probation and reinstate the five-to-fifteen-year sentence for robbery to run
concurrently with the sentence imposed in No. F-3827-85. Id., Ex. 5 (Judgment and
Commitment Order, United States v. Bethea, No. F-391-83 (D.C. Super. Ct. Mar. 20, 1986)).
Subsequently, the court reduced the sentence imposed in No. F-391-83 from a five-to-fifteen-
years imprisonment to a four-to-twelve-years imprisonment to be served concurrently with the
sentence imposed in No. F-3827-85. Id., Ex. 6 (Amended Judgment and Commitment Order,
United States v. Bethea, No. F-391-83 (D.C. Super. Ct. Sept. 25, 1986)). According to the
District of Columbia Department of Corrections’ sentence calculation, as of October 14, 1986,
petitioner’s aggregate sentence four-to-twelve-years imprisonment, and his full term date was
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April 10, 1998.1 Pet., Ex. (Face Sheet dated October 14, 1986).
Petitioner was released on parole on March 30, 1990. Resp’t Opp’n, Ex. 1 (Sentence
Monitoring Independent Sentence Computation) at 11. As of that date, petitioner’s full term date
was April 10, 1998, with 2,934 days remaining on his aggregate sentence. Id. While serving
this parole term, petitioner pled guilty to second degree burglary, and the Superior Court
imposed a thirty-to-ninety-month term of imprisonment. Id., Ex. 8 (Judgment and Commitment
Order, United States v. Bethea, No. F-1261-91 (D.C. Super. Ct. Apr. 15, 1991)). Petitioner’s
new aggregate sentence, then, was twelve years plus ninety months imprisonment
(approximately 19 ½ years). Id., Ex. 1 at 1.
Because petitioner was “entitled to good time deductions from the maximum term of
sentence,” Resp’t Opp’n, Ex. 14 (Certificate of Mandatory Parole) at 1, he was released via
mandatory parole on May 18, 2001.2 As of May 18, 2001, there were 1,919 days remaining on
his aggregate sentence and his full term date was August 19, 2006. Id.; see id., Ex. 1 at 9.
Because petitioner repeatedly violated conditions of his parole release, specifically by testing
positive for illegal drugs, failing to submit to drug testing, failing to participate in a drug
treatment program and failing to report to his community supervision officer as directed, see id.,
Ex. 15, 19 & 23 (Warrant Applications dated February 11, 2003, July 6, 2006, and February 28,
1
“Full term date” refers to “the date on which the maximum term for which
[petitioner] was sentenced would be reached.” Sanders v. U.S. Parole Comm’n, No. 05-2003,
2006 WL 473786, at *2 (D.D.C. Feb. 28, 2006).
2
By this time, the USPC had assumed jurisdiction with respect to parole decisions
for District of Columbia Code offenders pursuant to the National Capital Revitalization and
Self-Government Improvement Act of 1997, Pub. Law No. 105-33, § 11231(a)(1), 111 Stat. 712,
745 (1997); see D.C. Code § 24-406(a) (authorizing the USPC to “revoke the parole or modify
the terms and conditions thereof” with respect to prisoners retaken upon a violator warrant).
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2008, respectively), the USPC revoked parole on three occasions, see id., Ex. 17, 21 & 25
(Notices of Action dated May 10, 2003, September 20, 2006, and April 10, 2008, respectively).3
Petitioner last was released on parole on May 4, 2009, and he was to remain under parole
supervision through June 16, 2018. Id., Ex. 26 (Certificate of Parole) at 1.
Petitioner again failed to submit to drug testing, and when he did submit, he tested
positive for cocaine. Resp’t Opp’n, Ex. 27 (Warrant Application dated November 9, 2009) at 1-
2. In addition, petitioner was arrested on November 18, 2009 and charged with possession and
distribution of crack cocaine. Id., Ex. 28 (Supplement to Warrant Application dated December
2, 2009). Petitioner pled guilty to attempted distribution of a controlled substance, and the
Superior Court imposed an eight-month term of imprisonment with credit for time served.4 Id.,Ex. 29 (Judgment in a Criminal Case, United States v. Bethea, No. 2009 CF2 024591 (D.C.
3
“If the order of parole shall be revoked, the prisoner, unless subsequently
reparoled, shall serve the remainder of the sentence originally imposed less any commutation for
good conduct which may be earned by him after his return to custody.” D.C. Code § 24-406(a).
In other words, petitioner forfeited “street time” upon each parole revocation, and none of the
time spent on parole is credited toward service of the underlying sentence. See, e.g., Jones v.
Wainwright, No. 10-1186, 2010 WL 4116723, at *3 (D.D.C. Oct. 19, 2010); McFadden v. U.S.
Parole Comm’n, No. 10-0597, 2010 WL 3786586, at *2 (D.D.C. Sept. 27, 2010); Bethea v. Fed.
Bureau of Prisons, No. 10-0188, 2010 WL 538196, at *1 (D.D.C. Feb. 3, 2010). Petitioner does
not benefit from an amendment to this statutory provision, see D.C. Code § 24-406(c), which
permits credit for “street time” under certain circumstances, because the amendment “shall not
apply to any period of parole that was revoked prior to May [20], 2009,” D.C. Code § 24-406(d);
see McFadden, 2010 WL 3786586, at *2.
4
None of this eight-month term of imprisonment could be credited towards service
of any other sentence. See, e.g., Watts v. U.S. Parole Comm’n, 657 F. Supp. 2d 83, 85 (D.D.C.
2009) (rejecting prisoner’s argument that he should receive credit towards service of one
sentence for the extra days he was deemed in custody on another sentence); Ali v. District of
Columbia, 612 A.2d 228, 230 (D.C. 1992) (“[I]f the parole violation warrant was validly
executed while appellant was being held for the new offense, he would not be entitled to receive
credit in the new case for time spent after the warrant was executed.”).
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Super. Ct. June 25, 2010)). In response to these alleged violations, the USPC issued a parole
violator warrant on November 9, 2009, and it was executed on July 22, 2010. Id., Ex. 30
(Warrant and Warrant for Return of Prisoner Released to Supervision). The USPC conducted a
probable cause hearing on July 24, 2010, Pet.’s Letter [Dkt. #13] at 1, and it appears that a
revocation hearing has not yet taken place.5
II. DISCUSSION
A. The BOP Corrected Its Sentence Calculation
Petitioner contends that the BOP calculated his sentence in error, such that the sentences
imposed in Nos. F-391-83 and F-3827-85 ran consecutively, for an aggregate term of twenty-one
years instead of twelve years. Pet. at 2. With the sentence imposed in No. F-1261-91, he claims
that his aggregate sentence was nineteen and one-half years, not twenty-one years plus ninety
months. Id.The BOP’s error appeared when petitioner’s sentence was calculated upon his parole
release on May 4, 2009. Resp’t Opp’n, Ex. 2 (Sentencing Monitoring Computation Data as of
05-04-2009) at 3 (“Sentence Imposed/Time to Serve . . . 21 years 90 months”). It was presumed
that petitioner’s sentences ran consecutively, such that he would serve the four-to-twelve-year
term (Nos. F-391-83 and F-3827-85) before he began to serve the thirty-to-ninety-month term
(No. F-1261-91). In these circumstances, June 16, 2018 would have been his full term date. Id.
at 5 (“Expiration Full Term Date . . . 06-16-2018”); see id., Ex. 26 (Certificate of Parole) at 1.
5
To the extent that petitioner asserts a due process claim arising from the USPC’s
failure to conduct a revocation hearing promptly, the appropriate remedy for such a delay would
have been through a writ of mandamus to compel the USPC’s compliance with the timelines set
forth in its regulations. See Sutherland v. McCall, 709 F.2d 730, 732 (D.C. Cir. 1983).
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Respondent demonstrates that the BOP has corrected the error, and its records now
reflect that petitioner’s aggregate sentence is twelve years plus ninety months, id., Ex. 1 at 1, to
end on May 4, 2010, id. at 2.6
B. The USPC Retained Jurisdiction by Executing a Parole Violator Warrant
Prior to the Expiration of Petitioner’s Aggregate Sentence
The USPC’s parole violator warrant was issued on November 9, 2009, prior to the
expiration of petitioner’s aggregate sentence. “The issuance of a warrant . . . operate[d] to bar
the expiration of [petitioner’s] sentence [and] maintains the [USPC’s] jurisdiction to retake the
parolee either before or after the normal expiration date of the sentence and to reach a final
decision as to the revocation of parole and the forfeiture of time pursuant to D.C. Code [§]
24–406(c).” 28 C.F.R. § 2.98(e). In effect, issuance of the warrant tolls the running of the
sentence, see Brown v. U.S. Parole Comm’n, 713 F. Supp. 2d 11, 13-14 (D.D.C. 2010) (noting
that issuance of a violator warrant bars the expiration of the parolee’s sentence); see also Owens
v. Gaines, 219 F. Supp. 2d 94, 101 (D.D.C. 2002) (acknowledging the USPC’s “authority to toll
the expiration of a sentence for the purpose of conducting revocation hearings on a valid warrant
issued prior to the expiration of a sentence”), and the USPC indeed had jurisdiction to order
petitioner’s continued custody pending its decision to revoke or not revoke parole.
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
the United States.” 28 U.S.C. § 2241 (c)(3). Petitioner does not establish that his current
6
Petitioner’s sentence will be recalculated after the USPC notifies the BOP of its
decision in the pending revocation proceeding.
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custody is unlawful, and the habeas petition will therefore be denied. An Order accompanies
this Memorandum Opinion.
JOHN D. BATES
United States District Judge
DATE: November 5, 2010
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