FOSTER v. WAINWRIGHT
MEMORANDUM AND OPINION. Signed by Judge Ellen S. Huvelle on October 26, 2011. (AG)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 11-1374 (ESH)
This matter is before the Court on review of Jason Foster’s petition for a writ of habeas
corpus and the government’s opposition.1 For the reasons discussed below, the petition will be
In the Superior Court of the District of Columbia (“Superior Court”), petitioner pled
guilty to one count of robbery. See United States’ Opposition to Petitioner’s Petition for a Writ
of Habeas Corpus (“Gov’t Opp’n”), Ex. 1 (Judgment and Commitment Order, United States v.
Foster, No. F-2466-03 (D.C. Super. Ct. Mar. 1, 2005)). On October 10, 2003, the Superior
Court sentenced petitioner to a three-year term of imprisonment, suspended execution of a twoyear portion of the term, and imposed a two-year term of probation.2 See id., Ex. 2 (Sentence
Monitoring Computation Data dated Oct. 24, 2006) at 3; Petition (“Pet.”) at 5. For reasons not
On September 13, 2011, the Court issued an Order directing petitioner to file a response
to the government’s submission, but he failed to do so by the October 13, 2011 deadline.
The Superior Court may “suspend the imposition of sentence or impose sentence and
suspend the execution thereof, or impose sentence and suspend the execution of a portion
thereof,” and place an offender on probation. D.C. Code § 16-710(a); see Richardson v. United
States, 927 A.2d 1137, 1141 (D.C. 2007) (describing a “split sentence” as “a period of
incarceration followed by a period of probation”).
made clear in the record, the Superior Court revoked probation on March 1, 2005, and ordered
that petitioner serve the three-year prison term (with credit for time served) followed by a threeyear term of supervised release. 3 See Gov’t Opp’n, Ex. 1. With an award of good time credit
and credit for time served (366 days, from April 28, 2003 to April 29, 2003, and from May 16,
2003 to May 13, 2004), petitioner was released on November 14, 2006, id., at which time he
began service of his three-year term of supervised release. Id., Ex. 3 (Certificate of Supervised
Release dated October 30, 2006) at 1. Among other conditions of his release, petitioner was to
submit to drug testing as directed by his community supervision officer and abstain from the use
of alcohol and controlled substances. See id., Ex. 3 at 2-3.
On March 16, 2009, the United States Parole Commission (“USPC”) charged petitioner
with violations of the conditions of his supervised release. Gov’t Opp’n, Ex. 5 (Warrant
Application dated March 16, 2009) at 1. Specifically, petitioner allegedly had tested positive for
the use of marijuana on 11 occasions (Charge No. 1 – Use of Dangerous and Habit Forming
Drugs), failed to report for drug testing on five occasions (Charge No. 2 – Failure to Submit to
Drug Testing), and failed to comply with his curfew (Charge No. 3 – Failure to Comply with
Graduated Sanction (GPS Monitoring System)) on 12 occasions. See id., Ex. 5 at 1-2. The
USPC issued a violator warrant, see id., Ex. 6 (Warrant dated March 16, 2009), which was
executed on March 20, 2009, id., Ex. 7 (United States Marshal’s Return to the United States
Parole Commission). A hearing examiner conducted a probable cause hearing on March 27,
2009, and found probable cause to believe that petitioner committed at least one of the violations
charged. See id., Ex. 8 (D.C. Probable Cause Hearing Digest) at 2. The USPC proposed, and
The Superior Court cannot impose concurrent terms of both probation and supervised
release. If the court imposes a split sentence, it must suspend the term of supervised release.
Richardson v. United States, 927 A.2d 1137, 1143 (D.C. 2007).
petitioner accepted, an expedited revocation decision pursuant to which supervised release would
be revoked, all time spent on supervised release would be forfeited, and petitioner would serve a
term of imprisonment as a sanction. Id., Ex. 9 (Advanced Consent to Expedited Revocation
Decision) at 2. In accordance with this agreement, the USPC revoked supervised release and
directed petitioner to serve a 10-month term of imprisonment, followed by a 26-month term of
supervised release. Id., Ex. 10 (Notice of Action dated April 2, 2009) at 1.
Petitioner was released on January 19, 2010, at which time he began service of the
supervised release term, Gov’t Opp’n, Ex. 12 (Certificate of Supervised Release dated January
19, 2010), which was to have ended on March 18, 2012, id., Ex. 13 (Warrant Application dated
March 28, 2011) at 1. Within a year of his release, however, petitioner failed to submit to drug
testing on three occasions (Charge No. 1 – Failure to Submit to Drug Testing) and on January 24,
2011, he was arrested in the District of Columbia for operating an unregistered vehicle with a
suspended driver’s license (Charge No. 2 – Law Violation). Id., Ex. 13 at 1-2. Petitioner pled
guilty to the traffic offenses on February 22, 2011, and on April 25, 2011, the Superior Court
imposed an aggregate sentence of 150 days’ imprisonment.4 Id., Ex. 16 (Status Report dated
June 7, 2011) at 2.5
Review of the Superior Court’s docket reveals that, on February 22, 2011, petitioner
entered guilty pleas in two separate cases. See District of Columbia v. Foster, No. 2010-CTF15856 (D.C. Super. Ct. filed Aug. 26, 2010); District of Columbia v. Foster, No. 2011-CTF01383 (D.C. Super. Ct. filed Jan. 24, 2011). Only the second of these cases was the basis for the
law violation alleged in the March 28, 2011 warrant application.
As of June 7, 2011, petitioner was detained at the Correctional Treatment Facility in the
District of Columbia and “ha[d] served approximately 43 days of the 150 day jail sentence.”
Gov’t Opp’n, Ex. 16 at 2. Apparently there was “also a Federal Parole Violation Warrant
detainer.” Id., Ex. 16 at 2. The effect, if any, of the federal detainer on the length of petitioner’s
detention is unclear.
In the meanwhile, the USPC issued a violator warrant, Gov’t Opp’n, Ex. 14 (Warrant
dated March 28, 2011), which was executed on August 22, 2011, see id., Ex. 16 at 2. Petitioner
filed this action in July 2011.6
According to petitioner, he not only has served the three-year term of imprisonment
imposed by the Superior Court, but also has served his term of supervised release. See generally
Pet. at 5-6. He claims that his “time should have expired” and, therefore, that “no detainer
should be placed on [him].” Id. at 6. Review of the record, however, reveals that the petitioner
remained under the USPC’s supervision at the time the USPC issued and executed violator
warrants in 2009 and 2011.
“[A]ny person convicted [of robbery] shall suffer imprisonment for not less than 2 years
nor more than 15 years.” D.C. Code § 22-2801 (formerly D.C. Code § 22-2901). District of
Columbia law authorizes the imposition of a prison term followed by a term of probation (“split
sentence”), see D.C. Code § 16-710(a), as well as the termination of probation “when in the
opinion of the court the ends of justice shall require” it. D.C. Code § 24-304(a). Where the
Superior Court has suspended imposition of a portion of an offender’s sentence, has placed the
offender on probation and subsequently revokes probation, the court “may impose any sentence
which might have been imposed” initially, and “the time of probation shall not be taken into
account to diminish the time for which [the offender] was originally sentenced.” Id. If the
Superior Court imposes a sentence of more than one year, it also imposes a three-year term of
supervised release, D.C. Code § 24-403.01(b)(2)(B), to “commence on the day the offender is
According to the Federal Bureau of Prisons Inmate Locator, petitioner is designated to
the Federal Detention Center in Philadelphia, Pennsylvania, and his release date is unknown.
released from imprisonment,” D.C. Code § 24-403.01(b)(5). The record of this case shows that
petitioner received a prison sentence within the lawful range, received credit for time served
prior to his release on probation, and, upon revocation of probation, forfeited all time spent on
probation, all in accordance with District of Columbia law.
An offender serving a term of supervised release remains subject to the USPC’s authority
until completion of his term of supervised release. D.C. Code § 24-403.01(b)(6). The USPC is
authorized to revoke supervision, see D.C. Code § 24-403.01(b)(6), and as a sanction may
imprison an offender for a term of “[n]ot more than 2 years, if the maximum term of
imprisonment authorized for the offense is 5 years or more, but less than 25 years.” D.C. Code §
Petitioner’s 36-month term of supervised release began on November 14, 2006, and it
had not ended before the USPC issued the violator warrant in March 2009. Thus, the USPC
retained supervision authority over petitioner and was authorized to impose not only a 10-month
term of imprisonment but also an additional term of supervised release. Similarly, his 26-month
term of supervised release which began on January 10, 2010, had not expired when, on March
28, 2011, the USPC issued a second violator warrant. Although more than three calendar years
have passed since the Superior Court initially imposed its sentence, petitioner fails to
demonstrate that he has spent more than three years in prison or that the USPC improperly
exercised its authority after his term of supervised release had expired.
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 fails to show that his custody is unlawful,
and, accordingly, the habeas petition will be denied. An Order accompanies this Memorandum
ELLEN SEGAL HUVELLE
United States District Judge
DATE: October 26, 2011
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