JAMES K. BREDAR, Chief District Judge.
Petitioner, an inmate at the Federal Correctional Institution at Cumberland (FCI Cumberland), has filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 in which he challenges the U.S. Parole Commission's (USPC) revocation of his supervised release and imposition of a 49-month term of imprisonment. ECF No. 1. Petitioner subsequently amended his Petition by naming various employees of the USPC as Respondents. ECF No. 7. The Respondents have filed a Motion to Dismiss or, in the Alternative, Motion for Summary Judgment, ECF No. 15, and Petitioner has filed a Response in Opposition, ECF No. 17. Petitioner has also filed a Motion to Compel, seeking an evidentiary hearing on his Petition and the appointment of counsel. ECF No. 22. The matter is now ripe for review. After review of these filings, the Court finds no need for an evidentiary hearing. See Rules 1(b), 8(a), Rules Governing Section 2254 Cases in the United States District Courts and Local Rule 105.6. For the reasons that follow, the Court shall grant Respondents' dispositive Motion, deny Petitioner's Motion to Compel, and dismiss this action.
On August 25, 2006, in the Superior Court for the District of Columbia, Petitioner pled guilty to attempted distribution of cocaine, in violation of the D.C. Code. ECF No. 15-2 at 9.
After Petitioner "incurred several new arrests, tested positive for the use of controlled substances and failed to participate in drug treatment," he was arrested on December 28, 2011, for violating the terms of his supervised release. Id. at 4, 15. In June 2012, Petitioner's supervised release was formally revoked and he was sentenced to 11 months' imprisonment and 49 months' supervised release. Id. Petitioner was released from prison on November 27, 2012,
On June 25, 2014, Petitioner was arrested by the New York Police Department. Id. at 16, 18. As reported in the probation officer's request for a parole violator warrant, the arrest report stated:
Id.; see id. at 18 (arrest report).
On July 15, 2014, prior to Petitioner's state trial, Petitioner's probation officer requested the issuance of a parole violator warrant. Id. at 14-17. The request stated that Petitioner had violated the terms of his supervised release based on Petitioner's above-detailed arrest, admitted use of cocaine on multiple occasions, failure to report to multiple random drug tests, and failure to meet with his probation officer as scheduled. Id. at 14-15. The warrant issued December 22, 2014; however, because Petitioner was in the custody of the state of New York, the warrant was not executed when issued and a detainer was placed on Petitioner. Id. at 32-33.
On August 12, 2015, Petitioner was convicted by a jury of criminal possession of a weapon in the third degree, criminal mischief with intent to damage property, and menacing with a weapon in the second degree. Id. at 34, 56-57. Respondents report that a charge of assault with a deadly weapon was dismissed, id. at 34, but Petitioner has stated that he was never charged with that offense, id. at 56. Petitioner was sentenced to two to four years' imprisonment on the possession charge, and six months' imprisonment on each of the other charges. Id. at 34. On June 23, 2016, Petitioner was released from state custody and the U.S. Marshal executed the arrest warrant for the supervised release violation. ECF No. 1-4 at 5; ECF No. 15-2 at 35. Although in the legal custody of the United States, Petitioner was temporarily housed at the Oneida County Jail in New York State before being transferred to the Metropolitan Detention Center in Brooklyn and subsequently the Federal Detention Center in Philadelphia, both federal facilities. ECF No. 1-2 at 11 (reporting that Petitioner was moved to MDC Brooklyn on July 11, 2016); ECF No. 15-2 at 41 (indicating that Petitioner was housed at FDC Philadelphia no later than October 24, 2016).
In an August 29, 2016, report, a case analyst with the USPC determined that there was probable cause to find that Petitioner had violated his supervised release and recommended Petitioner's continued detention. ECF No. 15-2 at 36-38. In a September 7, 2016, letter to Petitioner, the USPC advised Petitioner that it had found probable cause to believe he had violated his supervised release and that the USPC would conduct a hearing to determine whether his supervised release should be revoked. Id. at 39-40.
The specific charge(s) upon which these finding(s) are based:
Id. at 39. The Probation Officer's request for a parole violator warrant, the warrant application, and other documents pertaining to the revocation were also mailed with the letter. Id. at 40.
Petitioner's revocation hearing was scheduled for October 24, 2016, but was continued at the request of Petitioner and his counsel. ECF No. 15-2 at 41.
Under 28 C.F.R. § 2.216(h), a second examiner is required to concur in the recommendation before the recommendation is submitted to the USPC for a decision. On December 12, 2016, a second examiner reviewed and disagreed with the initial recommendation's determination that the violations corresponded with a severity rating of Category 1. ECF No. 15-2 at 46-47. The second examiner explained that the violation 3(D), the New York conviction for second degree menacing, was "most like Assault under the USPC guidelines." Id. at 46.
A third examiner concurred with the second examiner's recommendation that the appropriate severity rating was a Category Five. Id. at 47. In support of this determination, the third examiner explained that
Id.
The recommendation was referred to the USPC, which found that Petitioner had committed charged violations 1, 2, 3(A), 3(C), and (D), and made no finding as to charged violation 3(B). Id. at 48. The USPC imposed the sentence articulated by the second examiner of 49 months' total imprisonment, comprising a new term of 25 months' imprisonment from the execution of the arrest warrant and credit for the 24 months' imprisonment he served while incarcerated on state charges. Id. The USPC provided the following statement of reasons for its decision:
Id. at 49.
After receiving an extension of time, Petitioner filed an appeal of the USPC's decision with the National Appeals Board (NAB) on December 19, 2016. Id. at 51-60. Petitioner's appeal presented only one ground: that the USPC erred in rating the severity level as a Category 5 because the commission incorrectly ruled that his violation was like an assault with a deadly weapon, thereby causing an error in the computation of the sentence guidelines. Id. at 54, 56-60. Petitioner asked that the first examiner's recommendation of 32 months' imprisonment be imposed instead. On June 23, 2017, after Petitioner filed the instant § 2241 action, the NAB rejected Petitioner's argument and affirmed the USPC's decision. Id. at 61.
Petitioner filed this habeas action on May 15, 2017. ECF No. 1. As numbered in the Petition, Petitioner presents the following grounds for habeas relief:
Respondents have filed a Motion to Dismiss or, in the Alternative, Motion for Summary Judgment, arguing that Grounds 1 through 7 should be dismissed for failing to exhaust administrative remedies, Grounds 8 and 13 should be dismissed as moot because the NAB has issued its decision on Petitioner's appeal, and Grounds 9 through 12 should be dismissed as not reviewable by this Court or as supported by some evidence. ECF No. 15-1 at 7-20. Petitioner filed a Response in opposition. ECF No. 17.
Respondents' Motion is styled as a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, for summary judgment under Rule 56. ECF No. 15. The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the sufficiency of the Plaintiff's complaint. See Edwards v. Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). The Supreme Court articulated the proper framework for analysis:
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (footnotes omitted).
This standard does not require defendant to establish "beyond doubt" that plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Id. at 561. Once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint. Id. at 562. The court need not, however, accept unsupported legal allegations, see Revene v. Charles Cty Comm'rs, 882 F.2d 870, 873 (4th Cir. 1989), legal conclusions couched as factual allegations, see Papasan v. Allain, 478 U.S. 265, 286 (1986), or conclusional factual allegations devoid of any reference to actual events, see United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979). Further, complaints filed by a pro se litigant are liberally construed to allow the development of a potentially meritorious case. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Summary judgment is appropriate only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Rule 56(c) mandates entry of summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In deciding whether there is a genuine issue of material fact, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248.
The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e).
Petitioner filed this habeas corpus action under 28 U.S.C. § 2241. To be entitled to relief under § 2241, Petitioner must demonstrate that "[h]e is in custody in violation of the Constitution or laws or treaties of the United States." § 2241(c)(1). Although habeas corpus actions are more frequently brought under 28 U.S.C. § 2254 or 28 U.S.C. § 2255, the Court finds that Petitioner correctly brought this claim under § 2241. 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. See, e.g., 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 corpus petition under 28 U.S.C.A. § 2241."); Rahim v. U.S. Parole Comm'n, 77 F.Supp.3d 140, 143 (D.D.C. 2015); Taylor v. Hollingsworth, Civ. No. DKC-07-970, 2007 WL 5614097, at *1 (D. Md. Oct. 29, 2007), aff'd, 280 F. App'x 294 (4th Cir. 2008). Accordingly, this action will proceed as a § 2241 petition, as filed.
The initial Petition named Warden Timothy Stewart as the sole Respondent. ECF No. 1 at 1. Petitioner subsequently amended the Petition to add as Respondents Stephen J. Husk, Lynne Jenkins, Tasha D. Jones, Darrell V. Donmore, and an Unnamed Commissioner of the USPC. ECF No. 7.
"[T]he proper respondent to a habeas petition is `the person who has custody over the petitioner.'" Rumsfeld v. Padilla, 542 U.S. 426, 434 (2004) (quoting 28 U.S.C. § 2242). Thus, the only proper Respondent in this § 2241 action is Timothy Stewart, the warden of FCI-Cumberland. The remaining Respondents, all of whom are associated with the USPC and were involved in the revocation proceedings, will be dismissed from this action.
The purpose of a writ of habeas corpus is to effect immediate or speedier removal from unlawful confinement. See Prieser v. Rodriguez, 411 U.S. 475, 484-88 (1973). Plaintiff does not request such relief. Instead, all of the relief that Petitioner seeks—such as "[i]mploring U.S. Congress to specifically add legislation" concerning District of Columbia offenders and ordering the "[a]ppointment of independent review board" to oversee the USPC—is beyond the scope of habeas relief. ECF No. 1 at 21-22. However, because Petitioner is proceeding pro se, the Court will nonetheless evaluate whether any of Petitioner's claims allege a "violation of the Constitution or laws or treaties of the United States," § 2241(c)(1), meriting the unrequested relief of an immediate or speedier release.
Although § 2241 does not contain an exhaustion requirement, courts have typically required petitioners to exhaust their administrative remedies prior to filing for federal habeas relief under § 2241. Timms v. Johns, 627 F.3d 525, 530-31 (4th Cir. 2010); Moscato v. Federal Bureau of Prisons, 98 F.3d 757, 760 (3rd Cir. 1996) (citing cases). Reliance on the administrative exhaustion requirement provides for development of a factual record, allows the appropriate agency to apply its expertise, and permits agencies to grant requested relief, thereby conserving judicial resources. Jones v. Bock, 549 U.S. 199, 207 (2007); Woodford v. Ngo, 548 U.S. 81, 89 (2006). Where judicial intervention is required, it facilitates the court's review. See Wright v. Warden, FCI-Cumberland, Civ. No. RDB-10-671, 2010 WL 1258181, at *1 (D. Md. March 24, 2010). The exhaustion requirement may be excused, however, where compliance would be futile. Id.; Garza v. Davis, 596 F.3d 1198, 1203 (10th Cir. 2010).
"[P]roper exhaustion of administrative remedies . . . means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits)." Woodford, 548 U.S. at 90 (internal quotation marks omitted). A claim must be "fairly presented" at each step in the exhaustion process, which means that the claim must "be presented face-up and squarely. Oblique references which hint that a theory may be lurking in the woodwork will not suffice." Baker v. Corcoran, 220 F.3d 276, 289 (4th Cir. 2000) (ellipses and internal quotation marks omitted). The fair presentation and proper exhaustion requirements must be completed as to each claim that the petitioner seeks to present to the Federal Courts in a habeas petition. Longworth v. Ozmint, 377 F.3d 437, 448 (4th Cir. 2004).
The regulations concerning the USPC and the D.C. Supervised Releasees are set forth at 28 C.F.R. §§ 2.200-2.220. The regulations detail the procedure for revocation hearings at § 2.216, explaining that after a hearing examiner conducts the revocation hearing, he or she
§ 2.216(h). After the examiners' recommendation is referred to the USPC, it has 21 days to determine whether a violation has occurred and, if so, to impose an appropriate punishment. § 2.217. The USPC's decisions "shall be made upon the vote of one Commissioner, except that a decision to override an examiner panel recommendation shall require the concurrence of two Commissioners." § 2.217(g). The regulations do not provide supervised releasees with the opportunity to challenge the examiner's recommendations before they are submitted to the USPC for final decision.
The regulations state that an individual may appeal a decision to "revoke supervised release, or impose a term of imprisonment or a new term of supervised release after revocation" by following 28 C.F.R. § 2.26, a regulation applicable to all individuals under the supervision of the USPC. 28 C.F.R. § 2.220(a), (d). Section 2.26 states that an appeal of an applicable USPC decision must be filed with the NAB "within 30 days from the date of entry of the decision. . . . The appeal must include an opening paragraph that briefly summarizes the grounds for the appeal. The appellant shall then list each ground separately and concisely explain the reasons supporting each ground." § 2.26(a)(2). The regulation identifies seven grounds for appealing a decision of the USPC to the NAB including, as relevant to the instant appeal,
§ 2.26(e). "The National Appeals Board shall act within sixty days of receipt of the appellant's papers, to affirm, modify, or reverse the decision. Decisions of the National Appeals Board shall be final." § 2.26(c). A petitioner has exhausted his administrative remedies after complying with the procedures set forth in § 2.26 for appealing to the NAB. See Clifton v. Richards, 17 F.3d 1433, 1994 WL 66024, at *1 (4th Cir. Mar. 2, 1994) (unpublished) (per curiam) (citing Brown v. Smith, 828 F.2d 1493, 1495 (10th Cir. 1987) (per curiam)); Abdussamadi v. Stewart, Civ. No. JKB-14-2105, 2015 WL 306666, at *3-4 (D. Md. Jan. 22, 2015), aff'd, 616 F. App'x 78 (4th Cir. 2015).
Where a habeas petitioner has failed to properly exhaust his claim, but it would be futile or impossible to do so now, the claim is considered procedurally defaulted. Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998). If a procedural default has occurred, a federal court may not address the merits of a habeas claim unless the petitioner can show (1) both cause for the default and prejudice that would result from failing to consider the claim on the merits, or (2) that failure to consider the claim on the merits would result in a miscarriage of justice, i.e., the conviction of one who is actually innocent. See Murray v. Carrier, 477 U.S. 478, 495-96 (1986); Breard, 134 F.3d at 620. "Cause" consists of "some objective factor external to the defense [that] impeded counsel's efforts to raise the claim" in the appropriate forum. Breard, 134 F.3d at 620. Even where a petitioner fails to show cause and prejudice for a procedural default, a court must still consider whether it should reach the merits of a petitioner's claims in order to prevent a fundamental miscarriage of justice. See Schlup v. Delo, 513 U.S. 298, 314 (1995).
In this case, Respondent argues that Petitioner failed to exhaust the USPC's administrative remedies as to the claims presented in Grounds 1-7 of the Petition. ECF No. 15-1 at 7-8. Respondent notes that the sole ground Petitioner presented to the NAB on appeal was that the USPC made an error in applying the guidelines because it rated the severity of Petitioner's violation incorrectly in determining it was most like an assault. ECF No. 15-1 at 7-8; see ECF No. 15-2 at 53-60. Petitioner has argued that he exhausted his administrative remedies because he "presented issue of due process to Metropolitan Detention Center Brooklyn and Federal Detention Center Philadelphia Staff," ECF No. 1 at 21, and because he, at his October 24, 2016, hearing,
As Petitioner has procedurally defaulted on Grounds 1-7, the Court considers whether he can demonstrate cause and prejudice to overcome the default. Petitioner argues that counsel filed his appeal with the NAB and that he "should not be held to her errors due to whatever the circumstances are that lead to her decision," which is ostensibly an attempted argument regarding the cause prong of the procedural default analysis. However, short of demonstrating constitutionally ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), an attorney's failure to raise a particular claim does not constitute cause to overcome procedural default. Murray, 477 U.S. at 492 ("Attorney error short of ineffective assistance of counsel does not constitute cause for a procedural default. . . . To the contrary, cause for a procedural default on appeal ordinarily requires a showing of some external impediment preventing counsel from constructing or raising the claim."). Petitioner has failed to satisfy the Strickland standard as to this particular claim, and he has failed to suggest any other basis for finding cause and prejudice to overcome the procedural default. Further, he does not identify a fundamental miscarriage of justice. Accordingly, the Court rejects Grounds 1-7 of the Petition as unexhausted and procedurally defaulted.
In Ground 8 of his Petition, Petitioner claims that the USPC failed to issue a decision on his Petition for Reconsideration. ECF No. 1 at 12. Similarly, in Ground 13, Petitioner claims that the NAB failed to issue a decision on Petitioner's appeal of his 49-month revocation sentence within the 60-day period prescribed by regulation. Id. at 20. Respondent claims that these grounds should be dismissed as moot because the NAB has since issued its decision. ECF No. 15-1 at 12-13.
The Court concludes that Ground 8 must be dismissed, though not for the reason articulated by the Respondent. Except for cases that a Regional Commissioner of the USPC designates an "original jurisdiction case," there is no reconsideration procedure by the USPC. 28 C.F.R. §§ 2.17, 2.26. The regulation under which Petitioner claims he submitted his reconsideration petition is titled "Petition for reconsideration of original jurisdiction decisions." 28 C.F.R. § 2.27 (emphasis added); see ECF No. 1 at 12. As Petitioner's case was not designated as an original jurisdiction case, the USPC had no legal obligation—regulatory or otherwise—to respond to his reconsideration petition. Accordingly, Ground 8 must be rejected.
Turning to Ground 13, Petitioner argues that the NAB failed to render a decision within the 60 days of receiving his papers, as required by 28 C.F.R. § 2.26(c). ECF No. 1 at 20. Petitioner states that his attorney electronically submitted his appeal to the NAB on March 3, 2017, and that, as of his drafting of the instant § 2241 petition on May 12, 2017, the NAB had not rendered a decision. ECF No. 2 at 20. Respondent argues that this claim is moot as the NAB has since issued its decision, ECF No. 15-1 at 13, and has attached a copy of the NAB's decision dated June 23, 2017, ECF No. 15-2 at 61-62. Petitioner responds that because he has not yet received the decision, the claim is not moot. ECF No. 17 at 6. As with Ground 8, the Court rejects this claim, although not for the reason advanced by Respondent.
The NAB's failure to render a decision within the time period articulated by regulation does not necessarily rise to the level of a due process violation meriting habeas relief. Judd v. Baer, 911 F.2d 571, 573 (11th Cir. 1990). Rather, for such a delay to implicate constitutional protections, Petitioner must demonstrate that the delay was both unreasonable and that it prejudiced him. Villarreal v. U.S. Parole Commission, 985 F.2d 835, 838 (5th Cir. 1993) (evaluating 18 U.S.C. § 4215 (1982), a subsequently repealed statute that imposed the same 60-day time period on the NAB to render a decision as found in 28 C.F.R. § 2.26(c)); Judd, 911 F.2d at 573 (same).
Here, it is plain that Petitioner suffered no prejudice from the delay.
The Court notes some concern that Petitioner reports that he has not yet received a copy of the NAB decision, which was apparently sent to Petitioner's former counsel on June 23, 2017. ECF No. 15-2 at 61-62. Accordingly, the Court will instruct that the Clerk provide Petitioner with a copy of the NAB decision, which the Respondents submitted to this Court in their exhibits.
Finally, in Grounds 9-12 of his Petition, Petitioner presents interrelated arguments concerning the USPC's determination that his release violation was akin to an assault, which prompted an increase in the violation's severity level from Category 1 to Category 5, and a corresponding increase in the guidelines imprisonment term from 12-16 months to 60-72 months. ECF No. 1 at 13-19. Respondent does not dispute that Petitioner exhausted these grounds by presenting them to the NAB on appeal (albeit, in one consolidated argument rather than Petitioner's four enumerated grounds). However, Respondent contends that the decision is unreviewable by this Court as a matter within the USPC's sole discretion or, alternatively, that its decision was supported by some evidence. ECF No. 15-1 at 13-20.
Judicial review of a decision by the USPC is limited. See Brown v. Lundgren, 528 F.2d 1054 (5th Cir.1976); Billiteri v. United States Board of Parole, 541 F.2d 938 (2d Cir. 1976). As long as the Commission observed due process requirements and acted within its statutory and regulatory authority, the courts "will not usurp the Commission's position as established in the statutory scheme enacted by Congress." Stroud v. United States Parole Commission, 668 F.2d 843, 846 (5th Cir.1982). The courts give "extreme deference" to the conclusions of the Parole Commission and "review[ ] them only to determine `whether there is `some evidence' in the record to support the Commission's decision." Simpson v. Ortiz, 995 F.2d 606, 608 (5th Cir. 1993) (quoting Maddox v. United States Parole Commission, 821 F.2d 997, 1000 (5th Cir. 1987)). "[A] court may review the action if there is a claim that the agency has violated constitutional, statutory, regulatory or other restrictions, but may not review agency action where the challenge is only to the decision itself." Garcia v. Neagle, 660 F.2d 983, 988 (4th Cir. 1981).
In Ground 9, Petitioner argues that the USPC erred because it "incorrectly rated the severity of [his] current violation conduct, by deeming the offense of conviction was sufficiently similar to assault with a dangerous weapon." ECF No. 1 at 13 (capitalization altered). In arguing that his severity rating was incorrect, however, Petitioner concedes that the challenged rating was supported by "some evidence"—namely, the USPC's determination that the conduct of menacing with a knife was akin to conduct rated at a Category 5 severity level. Because some evidence supports the application of a severity level of Category 5, Ground 9 is without merit.
As an aside, the Court notes that Petitioner's analysis in support of Ground 9 does not accurately report the USPC's decision. As he does on several other occasions in his filings to this Court, Petitioner compares the elements of the menacing conviction with the elements of the New York crime of assault with a deadly weapon in the first, second, and third degrees in an effort to demonstrate that the elements of menacing do not amount to assault. ECF No. 1 at 13-16. However, the USPC specifically made "no finding" as to whether Petitioner committed the New York offense of assault with a deadly weapon due to "insufficient evidence." ECF No. 15-2 at 48. Rather, the USPC stated that the menacing offense, with its requirement that an offender "places the victim in reasonable fear of bodily harm" is "most like Assault under the USPC guidelines." Id. at 46 (emphasis added).
Related to Ground 9, Petitioner argues in Ground 10 that the USPC's decision to increase his severity rating failed to comply with its own regulations that an increased severity rating be supported by a specific explanation. ECF No. 1 at 17. Unlike Ground 9, which challenged a conclusion of the USPC (its severity rating, which was supported by "some evidence"), Ground 10 is a challenge to whether the USPC followed its own regulations, which is more appropriate for this Court's habeas review. See Garcia, 660 F.2d at 988 ("[A] court may review the action if there is a claim that the agency has violated constitutional, statutory, regulatory or other restrictions. . . .").
Petitioner's argument is slightly misdirected as he quotes from Section 2.20-05 of the USPC Rules and Procedures Manual, which is titled "Decisions Outside the Guidelines." USPC Rules and Procedures Manual at page 85, available at https://www.justice.gov/sites/default/files/ uspc/legacy/2011/12/30/uspc-manual111507.pdf (document dated June 30, 2010). As explained in the discussion section for Ground 11, infra, a decision outside the guidelines is distinct from a determination regarding the severity rating, since the latter is merely a component in determining the former. In view of Petitioner's pro se status, however, the Court considers the more applicable section from the Manual, Section 2.20-04, which is titled "Offense Severity Rating." USPC Rules and Procedures Manual at page 84. This section states that "[t]he severity rating must be explained on the Notice of Action Worksheet (in the space provided) by a brief summary of the specific facts that justified the rating." Id.
Here, the adopted decision of the second and third hearing examiners gave the following explanation behind the severity rating of Category 5:
ECF No. 15-2 at 46-47 (emphasis added).
These statements are more than adequate to satisfy the requirement of a "brief summary of the specific facts that justified" Petitioner's Category 5 severity rating, particularly the emphasized section of the third examiner's decision.
Although the above summaries did not appear on the Notice of Action worksheet, it is apparent that the Petitioner received these summaries with the Notice of Action worksheet, presumably as attachments or exhibits, as evidenced by the fact that Petitioner's appeal to the NAB challenging the severity rating quoted from these summaries and referred to the authorizing examiners by name. See ECF No. 15-2 at 56-57. Accordingly, the Court rejects Ground 10.
Ground 11 is facially meritless, as the claimed error is inconsistent with the facts of the case. Petitioner claims that the USPC was required to provide specific reasoning for sentencing him "above the guidelines." ECF No. 1 at 18. Petitioner was not sentenced above the guidelines range; in fact, Petitioner's sentence of 49 months' imprisonment was below the guidelines range of 60 to 72 months' imprisonment. To the extent that Petitioner's intention was to challenge the reasoning behind the increased severity rating that yielded a different guideline range, it would be pointless to re-construe Ground 11 as making that argument, because Petitioner presents that argument in Ground 10.
Finally, as to Ground 12, Petitioner faults the USPS for using an unadjudicated offense in its revocation decision, and states that "[p]ursuant to [28 C.F.R.] § 2.102(b)[, he] was entitled to a local revocation hearing if the commission was going to consider an unadjudicated charge." ECF No. 1 at 19. The USPC is plainly allowed to consider "unadjudicated offenses," since the relevant question in revoking supervised release is whether the individual violated the terms of his release, which can be, but is not necessarily, accomplished by being convicted of another offense. Indeed, the second prong of Ground 12—that particular hearing procedures must occur when the USPC considers an unadjudicated charge—logically means that unadjudicated charges can serve as the basis for revocation. See 28 C.F.R. §§ 2.214(a), 2.215(a).
Petitioner's argument that he was entitled to a "local revocation hearing" under § 2.102(b) also fails. Section 2.102 and the rest of 28 C.F.R. Chapter I, Part 2, Subpart C apply to D.C. Code prisoners and parolees, not to individuals like Petitioner who are covered under Subpart D of the same Part. In any event, the regulation in Subpart D that mentions local revocation hearings states in relevant part:
§ 2.215(b) (emphasis added). Petitioner does not allege, nor does the record suggest, he made such a request. As such, Petitioner has failed to establish that the USPC violated their own regulations or any other law, and he is therefore not entitled to relief on this claim.
Accordingly, based upon the foregoing reasons, Respondents' Motion to Dismiss or, in the Alternative, Motion for Summary Judgment, ECF No. 15, will be granted. Habeas corpus relief shall be denied and the case will be dismissed with prejudice. In view of this disposition, the appointment of counsel and an evidentiary hearing are unnecessary. Therefore, Petitioner's self-styled Motion to Compel will also be denied. ECF No. 22. A certificate of appealability shall not issue and the Clerk shall be directed to close this case.
A separate order follows.
