Gibson v. Stewart
Filing
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MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 4/14/2016. (kns, Deputy Clerk)(c/m 4/14/16)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
DAVID LAMONT GIBSON, #10621-007
Petitioner,
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v.
CIVIL ACTION NO. DKC-15-3304
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WARDEN TIMOTHY STEWART1
Respondent.
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MEMORANDUM OPINION
I.
Background
On October 29, 2015, the Clerk received this 28 U.S.C. § 2241 petition for writ of habeas
corpus filed by David Lamont Gibson, who is confined at the Federal Correctional Institution in
Cumberland, Maryland. Gibson contends that in 2014, he discovered he should have been
scheduled for a federal parole hearing in 2007. He filed a grievance with the Bureau of Prisons
(“BOP”), which indicated that both his “sentence and parole eligibility were incorrect.” The
grievance was denied. ECF No. 1. Gibson maintains that although a Department of Justice
Inmate Skills Development Plan document indicated that action was taken by the U.S. Parole
Commission (“Commission”) on December 1, 2009, that review never occurred. Id. at p. 3.2 He
alleges that had such action occurred, he would have been eligible to receive a re-hearing “one
year after the last action taken by the Board” under Title 9, District of Columbia Rules and
Regulations § 103. Gibson argues that had the initial parole hearing been conducted properly, he
“could have possibly been given parole.” He seeks release or, in the alternative, transfer of the
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The Clerk shall amend the docket to reflect the correct name of the Respondent.
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All document pages are referenced by their electronic filing number.
Petition to the District Court for the District of Columbia.
Id. at p. 10. A brief overview of
Gibson’s relevant criminal case history follows.
On October 6, 1992, Gibson was sentenced in the Superior Court for the District of
Columbia to 43 years on counts of kidnapping while armed, armed robbery, possession of a
firearm during a crime of violence on a police officer, assaulting a police officer while armed,
and carrying a pistol without a license. ECF Nos. 1-1 at p. 2; 4-1 at p. 2. In addition, on August
25, 1994, the Superior Court for the District of Columbia sentenced Gibson to a 45-year term for
second-degree murder while armed. ECF No. 4-1 at p. 3.
The court has examined the Response and Gibson’s Reply. ECF Nos. 4; 5. For reasons
to follow, the Petition shall be DENIED.
II.
Standard of Review
A habeas corpus petition may be brought under 28 U.S.C. § 2241 to challenge the
“execution” of sentence, rather than the sentence itself. See United States v. Little, 392 F.3d 671,
679 (4th Cir. 2004), including parole. In order to be entitled to habeas relief under § 2241, a
prisoner must demonstrate that “[h]e is in custody in violation of the Constitution or laws or
treaties of the United States.” 28 U.S.C. § 2241(c)(3).
III.
Analysis
According to Respondent, the BOP aggregated Gibson’s sentences, resulting in a
cumulative term of 88 years and a minimum term of 26 years plus 40 months, with a total of
1,963 days of jail and diminution credit. He maintains that Gibson will become eligible for
parole on September 21, 2016. ECF No. 4-1 at p. 4. Respondent observes that Gibson applied
for parole on November 6, 2015, and was scheduled for an initial parole hearing in January of
2016. ECF No. 4-1 at pp. 4 & 6.
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In his Reply, Gibson contends that Respondent’s Answer is not compliant with the
court’s order because all relevant records were not provided. He attaches those records as
exhibits. ECF Nos. 5-1 through 5-7.
As noted in Allen v. O’Brien, No. 1:14-cv-02545, 2015 WL 4621453, at *9 (S.D.W.Va.
June 22, 2015), report and recommendation adopted, 2015 WL 4624619 (S.D.W.Va. July 31,
2015):
[A] prisoner possesses no federal constitutional liberty interest in
parole. Swarthout v. Cooke, 562 U.S. 216, 220 (2011) (“There is
no right under the Federal Constitution to be conditionally released
before the expiration of a valid sentence, and the States are under
no duty to offer parole to their prisoners.”); Jago v. Van Curen,
454 U.S. 14, 14–15,17, 21, (1981); Greenholtz v. Inmates of
Nebraska Penal & Corr. Complex, 442 U.S. 1, 7 (1979). Many
federal courts, addressing D.C. Code offenders, have agreed that
the D.C. parole system does not create a constitutionally protected
liberty interest in parole. Thompson v. Veach, 501 F.3d 832, 836–
37 (7th Cir. 2007); Blair–Bey v. Quick, 151 F.3d 1036, 1047 (D.C.
Cir. 1998); Ellis v. Dist. of Columbia, 84 F.3d 1413, 1420 (D.C.
Cir. 1996); Johnson v. Dist. of Columbia, 67 F.Supp.3d 157, 163
(D.D.C. 2014) (“[I]t is established that D.C. prisoners do not have
a constitutionally protected liberty interest in being released to
parole.”); Greenwood v. English, No. 5:13–cv–193–RS–EMT,
2013 WL 6085131, at *3 (N.D.Fla. Nov. 19, 2013) (“Because the
D.C. parole statutes and regulations provide no substantive
limitations on the Board’s authority to grant parole, they do not
create a liberty interest in parole release or the establishment of a
parole date.”); Johnson v. United States, 590 F.Supp.2d 101, 109
(D.D.C. 2008) (recognizing under D.C. law prisoner possessed no
liberty interest in parole based on initial order granting him parole
and that such order was subject to rescission without affording
prisoner due process). The District of Columbia Court of Appeals
has held similarly. See, e.g., McRae v. Hyman, 667 A.2d 1356,
1357 (D.C. 1995) (“The District’s parole scheme confers discretion
to grant or deny parole and the scoring system creates no liberty
interest overriding the exercise of that discretion.”).
Without a protected liberty interest in parole, [a prisoner]
certainly cannot mount a procedural due process challenge to the
[Commission’s] decision. See, e.g., Sansotta v. Town of Nags
Head, 724 F.3d 533, 540 (4th Cir. 2013). Furthermore, absent a
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liberty interest in parole, the availability of a substantive due
process claim to dispute the USPC’s decision is dubious. See
Jackson v. Standifird, 503 F. App’x 623, 625 (10th Cir. 2012)
(holding prisoner could not argue denial of procedural or
substantive due process where no state created liberty interest in
parole); Johnson v. Rodriguez, 110 F.3d 299, 308 (5th Cir. 1997)
(holding substantive due process claim challenging parole decision
unavailable where prisoners had no liberty interest in parole);
Bailey v. Gardebring, 940 F.2d 1150, 1157 (8th Cir. 1991)
(rejecting substantive due process claim where prisoner had no
constitutionally protected liberty interest under state law); Harding
v. Blumberg, Civil Action No. ELH–13–287, 2015 WL 302766, at
*4 (D.Md. Jan. 22, 2015) (stating no substantive due process
challenge exists without liberty interest in parole).
The Commission exercises authority over D.C. Code offenders pursuant to § 11231 of the
National Capital Revitalization and Self-Government Improvement Act of 1997 (“Act”), Public
Law 105-33, 111 Stat. 712, and D.C. Code § 24-409. The operation of the Commission with
respect to D.C. Code offenders is governed by the regulations set forth at 28 C.F.R. §§ 2.70 to
2.107. The Act gives the Commission sole authority over all parole release decisions regarding
D.C felony prisoners. In effect, it transferred parole release and revocation functions over D.C.
felony offenders from the former D.C. Board of Parole to the Commission. See Franklin v.
District of Columbia, 163 F.3d. 625, 632 (D.C. Cir. 1998); see also Simmons v. Shearin, 295
F.Supp.2d 599, 602 (D.Md. 2003). The Commission has promulgated regulations to implement
the D.C. parole statute. The regulations provide that the Commission will conduct an initial
hearing for a D.C. Code prisoner who has applied for parole consideration at least 180 days prior
to their parole eligibility date (i.e., 180 days before completion of his or her minimum term). See
28 C.F.R. § 2.71(b).
The BOP has the sole authority to determine how the prisoner’s sentences should be
calculated to determine the parole eligibility date. See United States v. Wilson, 503 U.S. 329,
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335 (1992). “When multiple sentences are aggregated by the Bureau of Prisons…such sentences
are treated as a single sentence for the purpose of every action taken by the Commission… and
the prisoner has a single parole eligibility date as determined by the Bureau of Prisons.” 28
C.F.R. § 2.5; see also Goode v. Markley, 603 F.2d 973, 977 (D.C. Cir. 1979) (“[I]t is well settled
that it is proper for the U.S. Parole Commission to aggregate consecutive sentences for the
purpose of determining parole eligibility.”). Thus, multiple sentences that are aggregated by the
BOP are treated as a single sentence for every action taken by the Commission. See Wilson v.
Fullwood, 772 F.Supp.2d 246, 251-52 (D.D.C. 2011); Bryant v. Civiletti, 663 F.2d 286, 289-90
(D.C. Cir. 1981); Gill v. U.S. Parole Comm’n, 692 F. Supp. 623, 626 (E.D.Va. 1988).
Gibson’s failure to receive an initial parole hearing prior to 2016 is not violative of any
statute, because he is not yet parole eligible. Under D.C. Code 24-404(a):
Whenever it shall appear to the United States Parole Commission
(“Commission”) that there is a reasonable probability that a
prisoner will live and remain at liberty without violating the law,
that his or her release is not incompatible with the welfare of
society, and that he or she has served the minimum sentence
imposed or the prescribed portion of his or her sentence, as the
case may be, the Commission may authorize his or her release on
parole upon such terms and conditions as the Commission shall
from time to time prescribe. While on parole, a parolee shall
remain in the legal custody and under the control of the Attorney
General of the United States or his or her authorized representative
until:
(1) The expiration of the maximum of the term or terms specified in his or
her sentence without regard to good time allowance; or
(2) The Commission terminates legal custody over such parolee under
subsection (a-1) of this section.
Gibson’s multiple sentences have been aggregated by the BOP. Thus, his 88-year term
has been calculated to a minimum term of 26 years plus 40 months. The Commission does not
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have the authority to release him until he has served that minimum sentence, calculated as
September 21, 2016. Gibson has no entitlement to habeas corpus relief.
When a district court dismisses a habeas petition, a certificate of appealability may issue
“only if the applicant has made a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). An inmate satisfies this standard by demonstrating “that reasonable jurists
would find the district court’s assessment of the constitutional claims debatable or wrong,”
Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)), or that “the issues presented were ‘adequate to deserve encouragement to proceed
further.’” Miller-el v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463
U.S. 880, 893 n.4 (1983)). Petitioner does not satisfy this standard, and the court declines to
issue a certificate of appealability.
IV.
Conclusion
The court understands Gibson’s frustration with the inconsistent information he was
provided by the BOP and Commission in regards to his parole eligibility date and Commission
action. He has, however, failed to set out a colorable due process or statutory claim regarding his
parole hearing status. For reasons articulated by the court, the Petition shall be denied and the
case closed.
Date:
April 14, 2016
/s/
DEBORAH K. CHASANOW
United States District Judge
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