Alexander v. United States Parole Commission et al

Filing 6

MEMORANDUM AND ORDER: ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud. IT IS HEREBY ORDERED that the Petition for Writ of Habeas CorpusUnder 28 U.S.C. § 2241 survives preliminary review under Rule 4 and Rule 1(b)of the Rules Governi ng Section 2254 Cases in United States District Courts. IT IS ORDERED that Respondent UNITED STATES PAROLE COMMISSION is DISMISSED as a party. IT IS ORDERED that Respondent Warden B. True shall answer orotherwise plead within thirty (30) days of the date this order is entered (on or before August 21, 2017). ( Action due by 8/21/2017.). Signed by Judge David R. Herndon on 7/21/2017. (tkm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ROBERT ALEXANDER,
# 06204-021,
Petitioner,
vs.
UNITED STATES PAROLE COMMISSION
and WARDEN B. TRUE,
Respondents.

Case No. 17-cv-545-DRH
MEMORANDUM AND ORDER

HERNDON, District Judge:
Petitioner Robert Alexander is currently incarcerated in the United States
Penitentiary at Marion, Illinois (USP-Marion).

He brings this habeas corpus

action pursuant to 28 U.S.C. § 2241, in order to challenge the decision of the
United States Parole Commission to revoke his parole and continue his sentence
beyond the term provided by the parole guidelines. This matter is now before the
Court for review of the Petition (Doc. 1) pursuant to Rule 4 of the Rules Governing
§ 2254 Cases in United States District Courts, which provides that upon
preliminary consideration by the district court judge, “[i]f it plainly appears from
the petition and any attached exhibits that the petitioner is not entitled to relief in
the district court, the judge must dismiss the petition and direct the clerk to
notify the petitioner.” Rule 1(b) of those Rules gives this Court the authority to
apply the rules to other habeas corpus cases. The Petition survives preliminary
review.
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I.

Background

According to the Petition, Alexander was arrested in February 2000 in
Chatham County, Georgia. (Doc. 1, pp. 1, 7). He was charged with rape (Count
1), child molestation (Count 2), and enticing a child for indecent purposes (Count
3). (Doc. 1, pp. 7, 12). Alexander agreed to plead guilty to a reduced charge of
statutory rape on December 16, 2002. (Doc. 1, pp. 1, 7). In exchange, Counts 2
and 3 were dismissed. (Doc. 1, p. 8). He was sentenced to 20 years, with 13
years to be served and 7 years probated. (Doc. 1, pp. 1, 7).
After serving more than 11 years (i.e., 142 months) in state custody,
Alexander was released on parole by the Georgia Board of Pardons and Parole on
February 12, 2012. (Doc. 1, p. 7). The United States Parole Commission then
took him into custody for a federal parole violation stemming from his Georgia
conviction. Id. The Parole Commission conducted a hearing on June 28, 2012,
and decided to revoke his parole. (Doc. 1, pp. 3, 7, 12-15). Alexander was given
no credit for time he spent on parole. Id. His sentence was “[c]ontinue[d] to
expiration, after the service of approximately 239 months.” Id.
In arriving at this decision, the Parole Commission initially rated
Alexander’s offense level as a category seven.

(Doc. 1, pp. 7-8).

The parole

guidelines provided that an individual with Alexander’s salient factor score in
category seven should be released in 78-110 months. (Doc. 1, p. 7). However, the
Parole Commission departed from its allegedly “miscalculated guideline range [by]
fixing Petitioner’s presumptive parole date at 2020,” i.e., which was 92 months

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beyond the guideline range.

Id.

The Parole Commission reasoned that the

upward departure was warranted by the fact that Alexander drugged his victim,
raped her, and gave her a sexually transmitted disease (STD). (Doc. 1, pp. 7, 1215).
Alexander appealed the decision.

(Doc. 1, pp. 4, 15).

However, the

National Appeals Board affirmed the Parole Commission’s decision. (Doc. 1, p.
15).

Alexander attended a second hearing before the Parole Commission on

March 6, 2014. (Doc. 1, pp. 4, 16). The second hearing resulted in no change in
the previous decision. (Doc. 1, p. 16). Alexander also appealed this decision, and
the appeal was denied on December 9, 2014. (Doc. 1, p. 18).
He filed a Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241
in this District on February 21, 2014.

Alexander v. United States Parole

Commission, No. 14-cv-00382-DRH (S.D. Ill. 2014). However, Alexander later
sought voluntary dismissal of the petition.

(Doc. 7).

This Court granted his

request and dismissed the petition without prejudice on April 1, 2014. (Doc. 8).
II.

Habeas Petition

In the instant § 2241 Petition, Alexander maintains that the Parole
Commission’s upward departure from the parole guidelines violated his due
process rights and was arbitrary, capricious, and an abuse of discretion. (Doc. 1,
p. 7). He offers several arguments in support of this assertion. (Doc. 1, pp. 711). First, he contends that the Parole Commission should not have categorized
his severity level based on the rape charge or departed from the guideline range

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based on a record that is devoid of any evidence -- other than the victim’s own
inconsistent statements -- that Alexander drugged his victim or gave her an STD.
(Doc. 1, p. 7). Second, he maintains that the Parole Commission used the same
information to establish the guideline range and to depart from it. (Doc. 1, p. 8).
Third, the Parole Commission allegedly disregarded all evidence of his good
inmate behavior and educational achievements when making its decision. (Doc.
1, p. 9). Finally, he claims that he was given ineffective assistance of counsel at
his revocation hearing. (Doc. 1, p. 10).
Alexander now asks this Court to grant his Petition and order Warden True
to release him from custody. (Doc. 1, p. 11). He also seeks an Order requiring
the Parole Commission to close his case and take no further action on it. Id.
III.

Discussion

A petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241 is
generally the proper vehicle for challenging “the fact or duration of confinement.”

Hill v. Werlinger, 695 F.3d 644, 645 (7th Cir. 2012) (citing Walker v. O’Brien, 216
F.3d 626, 629 (7th Cir. 2000)). Section 2241 challenges are “usually reserved for
attacking the execution, not imposition, of a sentence.”

Kramer v. Olson, 347

F.3d 214, 217 (7th Cir. 2003). Petitions are generally appropriate when success
would “spell speedier release.” Wilkinson v. Dotson, 544 U.S. 74, 82 (2005). A
petition for review of a final determination made by the Parole Commission fits
squarely within this category. See Romano v. Baer, 805 F.2d 268 (7th Cir. 1986)
(§ 2241 petition appropriate method to challenge decision of Parole Commission

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to continue petitioner beyond term provided by parole guidelines).

See also

Clemente v. Allen, 120 F.3d 703, 705 (7th Cir. 1997) (“[C]hallenges to the
computation of a sentence must be brought under 28 U.S.C. § 2241.”); Carnine v.

United States, 974 F.2d 924, 927 (7th Cir. 1992) (same); Lewis v. United States
Parole Commission, 132 F. App’x 659, 660 (7th Cir. May 16, 2005) (dicta,
miscalculation of petitioner’s parole date is a claim properly brought under §
2241 as a challenge to the execution of the sentence); Docken v. Chase, 393 F.3d
1024, 1031 (9th Cir. 2004) (challenge to the frequency of parole review could
potentially affect the duration of confinement and is properly brought under
habeas).
The instant Petition challenging the calculation made by the Parole
Commission in 2012 and affirmed in 2014 is properly brought under § 2241.
Moreover, venue is proper because Alexander is currently confined at a facility in
this federal judicial district. See Braden v. 30 Judicial Circuit Court of Kentucky,
410 U.S. 484 (1973) (venue proper in district that imposed sentence or in district
where inmate is imprisoned); Mikolon v. United States, 844 F.2d 456, 460-61
(7th Cir. 1988); United States v. Mittelsteadt, 790 F.2d 39, 40-41 (7th Cir. 1986);

Coates v. Smith, 746 F.2d 393, 396 (7th Cir. 1984). The instant Petition survives
preliminary review.
With that said, the United States Parole Commission shall be dismissed
from this action. The only proper respondent in a habeas action is the person
who has custody of the petitioner. Rumsfeld v. Padilla, 542 U.S. 426, 436 (2004).

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In this case, the person is Respondent B. True, who is identified as the Warden of
USP-Marion.
IV.

Disposition

IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus
Under 28 U.S.C. § 2241 survives preliminary review under Rule 4 and Rule 1(b)
of the Rules Governing Section 2254 Cases in United States District Courts.
IT

IS

ORDERED

that

Respondent

UNITED

STATES

PAROLE

COMMISSION is DISMISSED as a party.
IT IS ORDERED that Respondent Warden B. True shall answer or
otherwise plead within thirty (30) days of the date this order is entered (on or
before August 21, 2017). 1 This preliminary order to respond does not, of course,
preclude the Government from raising any objection or defense it may wish to
present.

Service upon the United States Attorney for the Southern District of

Illinois, 750 Missouri Avenue, East St. Louis, Illinois, shall constitute sufficient
service.
IT IS ORDERED that pursuant to Local Rule 72.1(a)(2), this cause is
referred to United States Magistrate Judge Clifford J. Proud for further pre-trial
proceedings and for disposition.

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The response date ordered herein is controlling. Any date that CM/ECF should generate
in the course of this litigation is a guideline only. See SDIL-EFR 3.
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IT IS ORDERED that this entire matter be REFERRED to United States
Magistrate Judge Proud for disposition, as contemplated by Local Rule 72.2(b)(2)
and 28 U.S.C. § 636(c), should all the parties consent to such a referral.
Petitioner is ADVISED of his continuing obligation to keep the Clerk (and
Respondent) informed of any change in his whereabouts during the pendency of
this action. This notification shall be done in writing and not later than seven (7)
days after a transfer or other change in address occurs. Failure to provide such
notice may result in dismissal of this action. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: July 21, 2017.

Digitally signed by
Judge David R. Herndon
Date: 2017.07.21
13:10:39 -05'00'

___________________________________
District Judge
United States District Court

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