Varner v. United States Parole Commission

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LARRY A. VARNER, )
)
Petitioner, )
)
v. ) Civ. Action No. 14-650 (RMC)
)
UNITED STATES )
PAROLE COMMISSION et al., )
)
Respondents. )
MEMORANDUM OPINION
Petitioner Larry A. Varner is a parolee under the supervision of the United States
Parole Commission. In this action for a writ of habeas corpus, Mr. Varner challenges the
calculation of his good-time credits under District of Columbia law. He asserts that given the
correct credit, his sentence would have expired long ago, on April 10, 2007. 1 The Commission’s
documentation establishes otherwise. Accordingly, Mr. Varner’s petition will be denied for the
reasons explained below.
I. BACKGROUND
The Superior Court of the District of Columbia sentenced Mr. Varner on June 8,
1984, to a prison term of ten to thirty-years for second-degree murder. On October 21, 1993, Mr.
Varner was released from a federal correctional facility to parole supervision, where he was to
1
Although this action is captioned: “Petition for Writ of Habeas Corpus Under 28 U.S.C. §
2241,” Mr. Varner also seeks monetary damages under 42 U.S.C. § 1983. See Pet. at 2. Because
a judgment in Mr. Varner’s favor would necessarily imply the invalidity of the parole term, the §
1983 claim is barred by Heck v. Humphrey, 512 U.S. 477 (1994). See Harris v. Fulwood, 611 Fed.
Appx. 1, 2 (D.C. Cir. 2015) (per curiam) (explaining that “section 1983 . . . claims are not
cognizable unless and until [the prisoner] meets the requirements of Heck, 512 U.S. at 486-87” by
invalidating the challenged detention in an appropriate proceeding).
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remain until October 9, 2018. On October 14, 1998, the Commission issued a parole violator
warrant, which was executed by Mr. Varner’s arrest on November 13, 1998. 2 Following a
preliminary interview conducted seven days later, Mr. Varner was released and reinstated to
parole supervision.
On January 16, 2002, Mr. Varner was “released from active supervision,” but he
remained subject to the Commission’s authority pursuant 28 C.F.R. § 2.97, until the expiration of
his maximum or full-term sentence on October 9, 2018. Resp’t’s Ex. 8 [Dkt. # 16-1]. In the
order approving “inactive parole/mandatory release supervision,” the Commission waived the
previously imposed parole conditions “except the condition that [Mr. Varner] violate no law or
engage in conduct which might bring discredit to the parole system, under penalty of withdrawal
of the order of release or possible revocation by the . . . Commission.” Id. The order made clear
that Mr. Varner was “in no way” released “from the custody of the Attorney General or the
jurisdiction of the U.S. Parole Commission” before the expiration of his sentence, and that the
Commission maintained its authority to resume parole supervision, impose special conditions,
and revoke parole. Id.
Following notification in December 2006 that Mr. Varner had been charged with
bank fraud and theft from a federal program, the Commission withdrew the foregoing order and
returned Mr. Varner to active parole supervision on January 26, 2007. Mr. Varner was convicted
on the theft charge and sentenced on August 24, 2007, to a prison term of six months, which he
served to expiration. In November 2007, the Commission issued a parole violator warrant based
on the theft conviction; the warrant was executed by Mr. Varner’s arrest on April 14, 2008.
2
The U.S. Parole Commission assumed responsibility over D.C. Code offenders in August 1998
as a result of the National Capital Revitalization and Self-Government Improvement Act of 1997,
Pub. L. No. 105–33, 111 Stat. 712, 734-37 (“Revitalization Act”), codified at D.C. Code §§ 24–
101–142.
2
Following a parole revocation hearing on July 15, 2008, the Commission revoked Mr. Varner’s
parole, and it rescinded more than fourteen years of credited time he had spent on parole—from
October 21, 1993 to April 14, 2008 (“street-time credit”). Mr. Varner was released to parole
again on November 14, 2008, where he was to remain until the expiration of his re-calculated
maximum sentence date of March 16, 2033.
Following notification that Mr. Varner had failed to submit monthly supervision
reports and to report to his parole officer, the Commission issued a parole violator warrant in
April 2012, which was executed by Mr. Varner’s arrest on October 28, 2013. The following day,
Mr. Varner admitted to the charges at a probable cause hearing. In November 2013, Mr. Varner
entered into an agreement where he accepted responsibility and waived his right to a revocation
hearing upon the Commission’s approval of his participation in “the Short-Term Intervention for
Success pilot project.” Resp’t’s Ex. 20. Mr. Varner agreed to “special drug aftercare” as an
additional condition of supervision. Id. Pursuant to the agreement, the Commission revoked Mr.
Varner’s parole, rescinded the time from March 8, 2012 to October 27, 2013, that he had spent
on parole, and set a re-parole date of February 27, 2014, after Mr. Varner’s service of four
months’ imprisonment. Mr. Varner was released to parole on February 27, 2014, where he was
to remain until the expiration of his re-calculated maximum sentence date of November 2, 2034.
Mr. Varner was arrested yet again on a parole violator warrant issued on October 22, 2014.
Following a hearing in December 2014, Mr. Varner’s parole was revoked and a re-parole date
was set for April 21, 2015, after his service of six months’ imprisonment. Mr. Varner was
credited for the time spent on parole; thus, his November 2, 2034 full-term date remains.
In the instant petition filed in April 2014 while on parole, Mr. Varner claims that
during his incarceration from June 6, 1984 to October 12, 1993, he earned “Statutory Good Time
credits at a rate of ten (10) days per month [and] Extra Good Time credits” for completing
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educational and vocational programs and for outstanding work performance. Pet. ¶¶ 3-5. In a
letter to the Commission dated August 4, 2005, Mr. Varner requested review under the “Good
Time Credits Act of 1987 and other applicable [D.C.] laws” of his “parole status for eligibility of
termination of my parole.” Pet. Ex. 2. The Commission was “unresponsive”; thus, Mr. Varner
submitted a second request dated March 4, 2006, adding that he had “accumulated enough good
time credits for immediate termination of my parole.” Pet. ¶ 7 and Ex. 3. Mr. Varner submitted
a third request dated January 17, 2007, and a fourth and final request dated March 23, 2007. In
the final letter, Mr. Varner stated: “if you fail to respond by April 10, 2007, I will conclude that
you consent to the termination of my parole.” Pet. Ex. 5.
II. DISCUSSION
District of Columbia prisoners are entitled to habeas corpus relief if they establish
that their “custody [is] in violation of the Constitution or laws or treaties of the United States.”
28 U.S.C. § 2241(c)(3). Mr. Varner has made no such showing.
In contrast to Mr. Varner’s assertion that his parole terminated on April 10, 2007,
the record establishes that he has been under the Commission’s authority continuously since
October 1993, when he was first released to parole supervision from a federal correctional
facility. Mr. Varner will remain under the Commission’s authority until November 2, 2034, at
the earliest. Therefore, the Commission acted well within its authority when it issued a parole
violator warrant in 2007, and when it revoked Mr. Varner’s parole and rescinded his street-time
credit in 2008. See Herndon v. U.S. Parole Comm'n, 961 F. Supp. 2d 138, 142 (D.D.C. 2013)
(finding “in accordance with the holdings of numerous prior cases in this district . . . that upon
each of petitioner’s parole revocations [prior to 2009], the number of days he spent on parole
was properly rescinded and, thus, no longer counted towards the service of his prison term”)
(citation and internal quotation marks omitted); Dews v. Waldern, 590 F. Supp. 2d 42, 44
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(D.D.C. 2008) (concluding that “upon each of Mr. Dews’s parole revocations, the number of
days he spent on parole was lawfully rescinded”) (citing Jones v. Bureau of Prisons, 2002 WL
31189792, *1 (D.C. Cir., Oct. 2, 2002) (per curiam)).
In addition, any credits Mr. Varner may have earned for good behavior while
incarcerated served only to reduce the time toward his parole eligibility date. As this Court has
explained:
The application of good time credit neither advances [a prisoner’s] full-term
date nor otherwise hastens the expiration of his maximum sentence. Rather,
“[g]ood time credits operate to allow a prisoner to become eligible for release
earlier than otherwise authorized by the sentence he received, to advance an
inmate's eligibility date for release on parole and to decrease an inmate's
mandatory release date. . . . When a prisoner’s parole is revoked, he “serve[s]
the remainder of the sentence originally imposed less any commutation for
good conduct which may be earned by him after his return to custody,” and
“[f]or the purpose of computing commutation for good conduct, the
remainder of the sentence originally imposed shall be considered as a new
sentence.” D.C. Code § 24-406(a). Upon an offender’s subsequent release on
parole, he “remain[s] in the legal custody and under the control of the
Attorney General of the United States or his . . . representative until . . . [t]he
expiration of the maximum of the term . . . specified in his . . . sentence
without regard to good time allowance.” D.C. Code § 24-404(a).
Ramsey v. Faust, 943 F. Supp. 2d 77, 82 (D.D.C. 2013) (alterations and emphasis in original)
(citations omitted)).
Finally, Mr. Varner has not cited a statute, regulation, or case to support his
conclusion that his parole automatically terminated on April 10, 2007, simply because the
Commission failed to act on his ultimatum. The subsequent parole revocation proceedings
beginning in November 2007 directly contradict any such notion.
CONCLUSION
For the foregoing reasons, the Court finds no grounds for issuing the writ of
habeas corpus and thus denies Mr. Varner’s petition. Consequently, Mr. Varner’s claim under
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42 U.S.C. § 1983 for monetary damages is dismissed without prejudice, in accordance with Heck
v. Humphrey, 512 U.S. 477 (1994). A separate order accompanies this Memorandum Opinion.
Date: April 26, 2016 __________/s/____________
ROSEMARY M. COLLYER
United States District Judge
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