JONES v. SHARTLE
Filing
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OPINION. Signed by Judge Renee Marie Bumb on 12/9/2015. (dmr)(n.n.)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MANUEL C. JONES,
Petitioner,
v.
J.T. SHARTLE, WARDEN
Respondent.
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: Civil Action No. 15-3267 (RMB)
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OPINION
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BUMB, District Judge
This matter comes before the Court upon Petitioner’s
submission of a petition under 28 U.S.C. § 2241 (ECF No. 1);
Petitioner’s supplemental materials (ECF No. 6); Respondent’s
Answer to the petition (ECF No. 7); and Petitioner’s Reply (ECF
No. 9). For the reasons discussed below, the habeas petition
will be denied.
I.
BACKGROUND
Petitioner is a federal inmate confined at the Federal
Correctional Institution in Fairton, New Jersey (“FCI-Fairton”)
(ECF No. 1 at 1.) On February 23, 1995, in the District of
Columbia, Petitioner was sentenced to a prison term of eighteen
years after pleading guilty to assault with intent to kill. (Id.
at 2, ¶4.) Petitioner was paroled on May 10, 2012, and ordered
to remain under parole supervision until April 16, 2016. (ECF
No. 7 at 4; Certificate of Sharon Gervasoni (“Gervasoni Cert.”)
Ex. 2, ECF No. 7-2 at 19.)
On September 19, 2013, Petitioner was arrested for assault
with significant bodily injury, to which he pled guilty in the
D.C. Superior Court. (ECF No. 1 at 10, ¶¶4-5.) Petitioner’s
supervising parole officer filed a violation report against
Petitioner on October 15, 2013. (Id. at 11.) The U.S. Parole
Commission issued a warrant on October 23, 2013, including
charges for (1) using dangerous and habit-forming drugs; (2)
failing to submit to drug testing; (3) failing to report to his
supervising officer as directed; and (4) “Law Violation [-]
Assault with Significant Bodily Injury. (ECF No. 1 at 10, ¶2;
ECF No. 7 at 7; Gervasoni Cert., Ex. 4, ECF No. 7-2 at 24-25.)
The warrant was lodged as a detainer. (Id.)
On January 14, 2014, Petitioner was sentenced by the
District of Columbia Superior Court to a term of 18 months
imprisonment, and 3 years supervised release for the 2013
assault. (ECF No. 1 at 11, ¶7; ECF No. 7 at 5.) On January 7,
2015, Petitioner completed his 18-month sentence, and the U.S.
Parole Commission’s warrant was executed at FCI-Fairton. (Id.;
Gervasoni Cert., Ex. 4, ECF No. 7-2 at 25.)
On January 26, 2015, after finding probable cause that he
violated conditions of his parole by committing the 2013
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assault, the Parole Commission offered Petitioner a proposal for
expedited revocation. (ECF No. 7 at 5-6; Gervasoni Cert., Ex. 6,
ECF No. 7-2 at 28-32.) The proposal Petitioner accepted two days
later states:
Revoke parole; None of the time spent on
parole shall be credited. Continue to
Expiration. This will require you to serve
[] approximately 27 months to your estimated
release date of 4/16/2016. Your actual
release date will be calculated by the
Bureau of Prisons.
You have a credit of 4 months toward your
guidelines for time served before the
warrant was executed. With the 27 months, to
serve from your arrest to your estimated
release date of 04/16/2016 you will serve 31
months toward your guidelines of 100-148
months.
A decision below the guidelines is required
because your mandatory release date limits
the time you will serve to less than the
bottom of the guideline range. After review
of all factors and information presented, a
decision further below the guideline range
is not found warranted.
(ECF No. 7 at 6; Gervasoni Cert., Ex. 7 at 1, ECF No. 7-2 at
33.) The Parole Commission issued a Notice of Action regarding
the expedited revocation on February 19, 2015. (Id., Gervasoni
Cert., Ex. 8, ECF No. 7-2 at 34.)
When the Federal Bureau of Prisons calculated petitioner’s
sentence, it began the sentence on January 7, 2015, the day
Petitioner finished serving his 2013 sentence and the parole
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warrant was executed. (ECF No. 1 at 12, ¶12.) Petitioner
contends that he should have been given credit for the state
sentence he just served. (Id.) Instead, in its computation,
Petitioner asserts the Federal Bureau of Prisons added two years
and nine months to his full term expiration date of April 16,
2016, extending his sentence to December 13, 2018. (Id.)
Petitioner contends the Parole Commission should have reduced
his 27 month set-off by 18 months, leaving him 9 months to
serve, pursuant to 28 C.F.R. § 2.21(c). (Id.)
In his supplemental materials, Petitioner alleged “the U.S.
Parole Commission reneged on its previous expedited offer
stating in its 2/19/2015 order that his estimated date of
release was 4/16/2016.” (ECF No. 6 at 3.) The Parole Commission
voided Petitioner’s February 19, 2015 Notice of Action and
scheduled a parole revocation hearing. (Id.) At the parole
revocation hearing on June 5, 2015, the parole examiner
“extended the petitioner’s set-off range as to conform to the
erroneously calculated sentence computation calculated by the
Federal Bureau of Prisons.” (Id.)
Respondent filed an answer to the habeas petition. (ECF No.
7.) Respondent contends that when the Parole Commission offered
Petitioner an expedited revocation, although it estimated his
release date would be 4/16/2016, they informed him that his
“actual release date [would] be calculated by the Bureau of
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Prisons.” (Id. at 2-3; Certificate of Sharon Gervasoni, Ex. 6 at
5, ECF No. 7-2 at 32.) The Parole Commission did not correctly
calculate Petitioner’s estimated release date when it drafted
the January 26, 2015 proposal. (ECF No. 7 at 6.) When the Parole
Commission learned of the discrepancy between the estimated
release date and the Bureau of Prison’s calculation of the
release date, it concluded that Petitioner’s waiver of his
revocation hearing was not knowing and voluntary, and it
conducted a revocation hearing on June 4, 2015. (Id. at 3.)
The Parole Commission, in a Notice of Action dated May 28,
2015, voided the February 19, 2015 Notice of Action because “it
resulted from an expedited revocation proposal that contained a
material error in regard to the projected time to serve. . .”
(ECF No. 7 at 7; Gervasoni Cert., Ex. 9, ECF No. 7-2 at 37.) As
a result of the June 4, 2015 revocation hearing, Respondent
asserts the Commission ordered that Petitioner remain in custody
until the expiration of his 1995 sentence, “the same result it
had earlier offered petitioner in the expedited revocation
offer.” (ECF No. 7 at 8; Gervasoni Cert., Ex. 10, ECF No. 7-2 at
38-40.) According to the BOP’s computation of Petitioner’s
sentence, his release date is in December 2018. (Id.)
II.
DISCUSSION
A. Exhaustion
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Respondent contends Petitioner failed to exhaust his
administrative remedies on his claim that the Parole Commission
violated his rights by voiding the expedited revocation and
revoking parole after the hearing. Respondent also asserts
Petitioner’s claims fail on the merits.
In Reply, Petitioner contends the exhaustion requirement
does not apply in this case because the May 28, 2015 Notice of
Action stated the “decision is not appealable.” (ECF No. 9 at
1.) Petitioner also argues that a prisoner need not exhaust
administrative remedies when the primary issue is statutory
construction, citing Bradshaw v. Carlson, 682 F.2d 1050, 1052
(3d Cir. 1981). Petitioner states his sole contention is that he
should have been given sentencing credit under the terms of the
expedited offer, pursuant to 28 C.F.R. § 2.21(c).
A prisoner must ordinarily exhaust administrative remedies
prior to challenging a parole decision in a habeas petition
under 28 U.S.C. § 2241. Warwick v. Miner, 257 F. App’x 475, 476
(3d Cir. 2007) (citing Moscato v. Fed. Bureau of Prisons, 98
F.3d 757, 760 (3d Cir. 1996.))
A D.C. offender may appeal a
parole revocation decision to the Commission’s National Appeals
Board. See 28 C.F.R. § 2.105(g). Failure to exhaust
administrative remedies creates a procedural default barring a §
2241 habeas petition absent a showing of cause and actual
prejudice to excuse the default. Moscato, 98 F.3d at 761-62. The
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exhaustion requirement, however, may be excused when exhaustion
would be futile. See Gambino v. Morris, 134 F.3d 156, 171 (3d.
Cir. 1998).
The Third Circuit Court of Appeals does not apply the
exhaustion requirement to § 2241 where its application would not
serve any of the basic goals of the exhaustion doctrine.
Bradshaw, 682 F.2d at 1052 (citing U.S. ex rel. Marrero v.
Warden, Lewisburg Penitentiary, 483 F.2d 656, 659 (3d Cir. 1973)
reversed on other grounds 417 U.S. 653 (1974)). The goals of the
exhaustion doctrine are (1) facilitating judicial review by
allowing the agency to develop a factual record and apply its
expertise, (2) conservation of judicial time if the agency
grants the relief sought, and (3) giving an agency the
opportunity to correct its own errors. Id. (citing Marrero 482
F.2d at 659). If the only issue is statutory construction, and
the Respondent has consistently opposed the petitioner’s
contention regarding the statutory construction, then the goals
of the exhaustion doctrine are inapplicable. Id.
This Court finds that the same reasoning applies to
exhaustion of Petitioner’s regulatory interpretation claim;
there is no factual record to develop, and the Parole Commission
has opposed Petitioner’s purely legal contention regarding the
regulation. Accepting Petitioner’s statement that his sole
contention is that he should have been given sentencing credit
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pursuant to 28 C.F.R. § 2.21(c) (ECF No. 9 at 1-2), the Court
finds that exhaustion of administrative remedies would not serve
any of the goals of the exhaustion doctrine, particularly
because Petitioner’s regulatory claim is without merit.
B.
Credit for Time Spent In Custody on 2013 Conviction
A habeas petition under 28 U.S.C. § 2241 is the proper
vehicle for a prisoner to challenge the execution of his
sentence, including parole decisions by the United States Parole
Commission. U.S. v. Kennedy, 851 F.2d 689, 690 (3d Cir. 1988)
(citing United States v. Ferri, 686 F.2d 147, 158 (3d Cir.
1982), cert. denied, 459 U.S. 1211 (1983)). Habeas relief is
available when a person “is in custody in violation of the
Constitution or laws or treaties of the United States.” 28
U.S.C. § 2241(c)(3). A federal court’s standard of review over a
Parole Commission’s decision is whether there is a rational
basis in the record for the Commission’s conclusions. Furnari v.
Warden, 218 F.3d 250, 254 (3d Cir. 2000).
Petitioner contends he is entitled to sentencing credit for
his 2013 conviction and sentence against his 1995 conviction,
pursuant to 28 C.F.R. § 2.21(c).1 He is wrong. Section 2.21
1
In his Reply, Petitioner argued:
“That, the petitioner's date of expiration
of his sentence was
April 16, 2016, when he was released from
prison on May 9, 2012.
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applies to a reparole term, which is different from the length
of time which remains to be served on the original sentence as a
result of the parole violation. Staege v. U.S. Parole Comm’n,
671 F.2d 266, 269 (8th Cir. 1982) (“there is a distinction
between the credit given in applying the reparole guidelines and
the credit given in calculating the extent of the violator term
(i.e., the balance of the defendant's federal sentence.”))
When an offender commits a new crime while on parole, the
Parole Commission may issue a warrant for the apprehension and
return of the offender to custody. 28 C.F.R. § 2.44(a)(2). If
the Parole Commission decides to revoke parole, it must decide
when the offender is eligible for reparole based on the sentence
for his new conviction. See 28 C.F.R. § 2.81. 28 C.F.R. § 2.21
governs reparole decisions for D.C. Code Parole violators.
28 C.F.R. § 2.47(e) explains:
(e)(1) A parole violator whose parole is
revoked shall be given credit for all time
in federal, state, or local confinement on a
new offense for purposes of satisfaction of
the reparole guidelines at § 2.20 and §
2.21.
Thus, any date past the expiration of the
April 16, 2016 date was
erroneous because it would be illegal to
extend a lawfully imposed
sentence by any one other than the court
which initially sentenced
petitioner in 1995.”
ECF No. 9 at 4.
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(2) However, it shall be the policy of
the Commission that the revoked
parolee's original sentence (which due
to the new conviction, stopped running
upon his last release from federal
confinement on parole) again start to
run only upon release from the
confinement portion of the new sentence
or the date of reparole granted
pursuant of these rules, whichever
comes first. This subsection does not
apply to cases where, by law, the
running of the original sentence is not
interrupted by a new conviction (e.g.,
YCA; NARA; Mexican or Canadian treaty
cases).
28 C.F.R. § 2.52(C)(2) provides,2 in relevant part:
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See also 28 C.F.R. § 2.105(d)(2)(i) (“[t]he Commission shall
forfeit credit for the period of parole if the parolee is
convicted of a crime committed during a period of parole . . .
that is punishable by a term of imprisonment of more than one
year.”)
Furthermore, 28 U.S.C. § 2.100(d)(2) provides that:
A parole violator whose parole is revoked
shall be given credit for all time in
confinement resulting from any new offense
or violation that is considered by the
Commission as a basis for revocation, but
solely for the limited purpose of satisfying
the time ranges in the reparole guidelines
at § 2.81. The computation of the prisoner’s
sentence, and forfeiture of time on parole
pursuant to D.C. Code 24-406(c), is not
affected by such guideline credit.
D.C. Code 24-406(c) states:
(c)(1) Except as provided in paragraphs (2)
and (3) of this subsection, a parolee shall
receive credit toward completion of the
sentence for all time served on parole.
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(c) A parolee whose release is revoked by
the Commission will receive credit on
service of his sentence for time spent under
supervision, except as provided below:
(2) It is the Commission's
interpretation of 18 U.S.C. 4210(b)(2)
that, if a parolee has been convicted
of a new offense committed subsequent
to his release on parole, which is
punishable by any term of imprisonment,
detention, or incarceration in any
penal facility, forfeiture of time from
the date of such release to the date of
execution of the warrant is an
automatic statutory penalty, and such
time shall not be credited to the
service of the sentence. An actual term
of confinement or imprisonment need not
have been imposed for such conviction;
it suffices that the statute under
which the parolee was convicted permits
the trial court to impose any term of
confinement or imprisonment in any
penal facility . . .
In Smith v. U.S. Parole Com’n, a prisoner challenged the
Parole Commission’s refusal to credit time he spent on parole
toward satisfaction of his original sentence. 563 F. App’x 99,
102 (3d Cir. 2014) (per curiam). Smith received a parole
revocation hearing after he committed a new offense while on
parole from his earlier conviction, a bank robbery. Id. at 100-
(2) If a parolee is convicted of a crime
committed during a period of parole, the
Commission:
(A) Shall order that the parolee not receive
credit for that period of parole if the crime is
punishable by a term of imprisonment of more than
one year; or . . .
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01. As occurred in this case, the hearing examiner recommended
that Smith not receive credit toward his sentence for his
earlier bank robbery for any of the time he spent on parole
(which included the time between his parole date until the
execution of the Commission’s warrant). Id. at 101. Smith
contended that his original 1982 sentence had expired when he
was reparoled in August 2003. Id.
The Third Circuit held that Smith was not entitled to
habeas relief because his reparole date was not the same as the
date when his 1982 sentence expired. Id. at 102. The forfeiture
provision of 28 C.F.R. § 2.52(c)(2) applied to calculation of
Smith’s original sentence, and he was not entitled to credit
against his 1982 sentence from the date of his release on parole
to the date of execution of the Commission’s warrant. Id. The
same is true for Petitioner here. Section 2.21(a) does not
operate in the manner suggested by Petitioner; it does not apply
to the computation of the original sentence.
III. CERTIFICATE OF APPEALABILITY
“[P]risoners serving District of Columbia (D.C.) Code
offenses must obtain a certificate of appealability (COA) to
appeal denial of their habeas petitions.” Wilson v. U.S. Parole
Com’n, 652 F.3d 348, 352 (3d Cir. 2011). A certificate of
appealability may issue “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28
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U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by
demonstrating that jurists of reason could disagree with the
district court's resolution of his constitutional claims or that
jurists could conclude the issues presented are adequate to
deserve encouragement to proceed further.” Miller–El v.
Cockrell, 537 U.S. 322, 327 (2003). No certificate of
appealability will issue because petitioner has not met this
standard.
IV. CONCLUSION
In the accompanying Order filed herewith, Petitioner’s
habeas petition will be denied because the Parole Commission had
a rational basis to rescind the January 2015 expedited
revocation proposal, and a rational basis for its decision, upon
the June 5, 2015 parole revocation hearing, that Petitioner is
not entitled to credit against his 1995 sentence for the time
served on his 2013 sentence.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: December 9, 2015
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