EVANS v. WARDEN J. HOLLINGSWORTH

Filing 28

OPINION. Signed by Judge Noel L. Hillman on 10/29/2018. (dmr)(n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
HERBERT EVANS,
:
:
Petitioner,
:
Civ. No. 18-3505 (NLH)
:
v.
:
OPINION
:
WARDEN DAVID ORTIZ,
:
:
Respondent.
:
______________________________:
APPEARANCES:
Herbert Evans, No. 39557-007
FCI Ft. Dix
Inmate Mail/Parcels
East: P.O. Box 2000
Ft. Dix, NJ 08640
Petitioner Pro se
Anne B. Taylor
Office of the United States Attorney
401 Market St.
P.O. Box 2098
Camden, NJ 08101
Counsel for Respondent
HILLMAN, District Judge
Petitioner Herbert Evans (“Petitioner”), a prisoner
presently incarcerated at the Federal Correctional Institution
at Fort Dix in Fort Dix, New Jersey, has filed a Petition for a
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (the
“Petition”).

ECF No. 1.

Petitioner alleges that he is being

held wrongfully after being arrested for a violation of his
supervised release because the U.S. Parole Commission does not
have jurisdiction over him and the Parole Commission’s

imposition of a term of imprisonment and further supervised
release for the violation is unlawful.

See ECF No. 1.

By order

of Court, Respondent filed an Answer to the Petition (the
“Answer”).

ECF No. 13.

disposition.

The Petition is now ripe for

For the reasons stated below, the Petition will be

denied.
I. BACKGROUND
In 2007, Petitioner was convicted after a jury trial of
aggravated assault while armed in violation of D.C. Code §§ 22–
404.01, 22–4502.
App. 2011).

See Evans v. United States, 12 A.3d 1 (D.C.

On August 24, 2007, the Superior Court for the

District of Columbia sentenced Petitioner to eighty-four months
in prison with five years of supervised release.
No. 1 at 6-7.

Id.

See ECF

Petitioner completed his prison sentence on

October 28, 2012, and began his five-year period of supervised
release.

See ECF No. 13 at 3.

About six weeks later, on

December 5, 2012, the Parole Commission issued a Notice of
Action requiring Petitioner to participate in a drug aftercare
program, a mental health program, and an anger management
program.

See id.

While Petitioner was still on supervised release, a warrant
was issued for his arrest on July 8, 2016 for (1) the use of
dangerous and habit-forming drugs; (2) a violation of special
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condition of drug aftercare; (3) the failure to submit to drug
testing; and (4) assault.

See id.

On July 12, 2016, Petitioner

was arrested pursuant to that warrant.

See id.

The Parole Commission held Petitioner’s revocation hearing
on September 14, 2016.

See id.

The hearing examiner

recommended that the Parole Commission find that Petitioner had
violated his supervised release by: (1) using dangerous and
habit forming drugs; (2) violating the special condition of his
supervised release to attend mental health treatment as directed
by his supervising officer; (3) failing to submit to drug
testing as directed; and (4) committing assault.

Id.

The

Parole Commission issued a Notice of Action in which it revoked
Petitioner’s supervised release and ordered him to serve thirtysix months in prison followed by twenty-four months of
supervised release.

Id.

See ECF No. 1 at 6.

The Notice of

Action stated that the Parole Commission determined imprisonment
for an amount of time above the otherwise applicable guideline
range was appropriate because Petitioner is:
[A] more serious risk than indicated by the guidelines
in that [Petitioner has] committed a new assault while
on supervision for Aggravated Assault While Armed, in
which [Petitioner] stabbed [his] victim multiple time
in the back. Additionally, [Petitioner has] exhibited
documented instances of aggressive, disruptive,
hostile, and/or threatening behavior during this
period of supervision and [Petitioner has] other prior
convictions for Aggravated Assault and Assault. The
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Commission finds this pattern of violent behavior and
aggressive behavior creates an unacceptable risk to
public safety and [Petitioner’s] continued
incarceration, above the guidelines, is necessary to
protect the community.
ECF No. 13 at 4-5.
Petitioner appealed the Parole Commission’s decision on
January 13, 2017.

See id. at 5.

The Parole Commission’s

National Appeals Board reviewed Petitioner’s administrative
appeal and denied the appeal on April 7, 2017.

See id.

Petitioner filed this Petition in the U.S. District Court
for the District of Columbia on November 16, 2017.

ECF No. 1.

Respondent moved to transfer the action to this District because
Petitioner is imprisoned at FCI Fort Dix, ECF No. 8, and that
motion was granted on February 20, 2018, ECF No. 9.
filed an Answer.

ECF No. 13.

Respondent

Petitioner has filed various

letters that address some arguments in reply.

ECF Nos. 14, 15,

17.
II. DISCUSSION
A petition for writ of habeas corpus brought pursuant to 28
U.S.C. § 2241 is the proper way in which a federal prisoner may
challenge parole proceedings, including the revocation of parole
and the execution of the sentence post-revocation.

See Callwood

v. Enos, 230 F.3d 627, 632 (3d Cir. 2000); United States v.
Kennedy, 851 F.2d 689, 690 (3d Cir. 1988) (“A challenge to the
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Parole Commission’s execution of a sentence is properly raised
in a habeas petition under 28 U.S.C.A. § 2241.”); Alston v.
Stewart, No. 17-cv-1339, 2018 WL 1069360, at *6 (D. Md. Feb. 27,
2018) (“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.”); Johnson v. Samuels, No. 06-cv2233, 2007 WL 1575076, at *1-2 (D.N.J. May 30, 2007) (§ 2241
petition proper way in which a federal prisoner convicted
pursuant to the D.C. Code may challenge the revocation of
parole); Noble v. United States Parole Comm'n, 887 F. Supp. 11,
12 (D.D.C. 1995).

Therefore, this Petition is properly brought

under 28 U.S.C. § 2241.
In the Petition, the Petitioner raises three grounds for
relief.

First, Petitioner argues that the Parole Commission

lacks authority over him and thus he is being held wrongfully.
See ECF No. 1 at 14.

As part of this argument, Petitioner

contends that the Parole Commission is violating separation of
powers by usurping the Superior Court’s authority to sentence
him.

Second, Petitioner argues that because forty-four months

of his sixty-month period of supervised release had elapsed
before the Parole Commission issued a warrant for his arrest and
revoked his supervised release, the Parole Commission could only
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impose “15-16 months” of imprisonment, i.e. the remainder of his
original term of supervised release.

See ECF No. 1 at 6.

Finally, Petitioner references the Ex Post Facto clause and
intimates that the term of imprisonment and further supervised
release he received after his supervised release was revoked
somehow violates this clause.

See id.

Petitioner does not

challenge the basis for the revocation of his parole.
Petitioner was sentenced, imprisoned, and on supervised
release under the District of Columbia Code.

The Parole

Commission “assumed the responsibility of making parole release
decisions for all eligible District of Columbia Code felony
offenders on August 5, 1998 pursuant to [the National Capital
Revitalization and Self-Government Improvement Act of 1997,
Public Law No. 105-33, § 11231(a)(1), 111 Stat. 712, 745
(effective Aug. 5, 1998), D.C. Code § 24-1231,] and D.C. Code §
24-209.” Muhammad v. Mendez, 200 F. Supp. 2d 466, 469–70 (M.D.
Pa. 2002).

“Effective August 5, 2000, the Commission was given

the remaining responsibilities of the former D.C. Board of
Parole regarding the supervision of parolees and the revocation
of parole for release violations.”

Id. at 470, n.4 (citing §

11231(a)(2) of the Act, codified at D.C. Code § 24-1231(a)(2)).
The Revitalization Act gives the Parole Commission the same
authority over the terms, conditions, and revocation of
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supervised release as is vested in the U.S. District Courts by
18 U.S.C. § 3583.

See D.C. Code § 24-403.01(b)(6).

The Bureau

of Prisons thus assumed the responsibility of incarcerating
offenders convicted in the Superior Court for the District of
Columbia.

See Public Law No. 105–33, §§ 1100–1723, 111 Stat.

251, 712–87 (1997).
Petitioner’s commission of the offense, his conviction, and
his sentencing all occurred at times when a District of Columbia
“offender shall be subject to the authority of the United States
Parole Commission.”

D.C. Code § 24-133(c)(2).

See also D.C.

Code § 403.01(b)(6) (“Offenders on supervised release shall be
subject to the authority of the United States Parole Commission
until completion of the term of supervised release.).

Under the

terms of the National Capital Revitalization and Self-Government
Improvement Act of 1997, the Parole Commission has the authority
to determine the conditions of supervised release for Petitioner
and to decide whether his supervised release should be revoked
for violation of his conditions of release.

See also Zanini v.

Williamson, No. 06-0982, 2008 WL 4861512 (M.D. Pa. Oct. 30,
2008) (discussing the Parole Commission’s authority over
District of Columbia offenders subject to supervised release).
Thus, there is no merit to Petitioner’s argument that the Parole
Commission somehow lacks jurisdiction or authority over him or
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the terms and revocation of his supervised release.
Petitioner also argues that the delegation of such
authority to the Parole Commission infringes on the separation
of powers in that the Parole Commission has usurped the
sentencing function of the Superior Court of the District of
Columbia.

Petitioner is incorrect.

The Parole Commission’s

exercise of authority to revoke Petitioner’s supervised release
and impose terms of imprisonment and further supervised release
does not violate the separation of powers doctrine.

The Parole

Commission’s actions are authorized by the Revitalization Act
and D.C. Code, as discussed above.

This authority confers upon

the Parole Commission the power to supervise Petitioner while on
release, revoke Petitioner’s supervised release, and impose upon
him terms of imprisonment or supervised release following
revocation.

See Taylor v. U.S. Parole Comm’n, 860 F. Supp. 2d

13, 16 (D.D.C. 2012) (the Parole Commission “has the authority
both to revoke supervised release and return a releasee to
custody, as well as to impose a new term of supervised release
following his release from custody.”).
The Parole Commission possesses authority over the
execution of a judicially imposed sentence including parole and
supervised release, and its proceedings are separate
administrative matters at which the offender “[d]oes not possess
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the same rights as a criminal defendant at trial” and are not
part of the original criminal proceedings.

See Smallwood v.

U.S. Parole Comm’n, 777 F. Supp. 2d 150 (D.D.C. 2011) (quoting
Maddox v. Elzie, 238 F.3d 437, 445 (D.C. Cir. 2001) and citing
Morrissey v. Brewer, 408 U.S. 471, 480 (1972)).

The Parole

Commission’s exercise of its authority over persons such as
Petitioner does not usurp the judicial function or offend the
doctrine of separation of powers.

See, e.g., Rahim v. U.S.

Parole Comm’n, 77 F. Supp. 3d 140, 145 (D.D.C. 2015); Morrison
v. U.S. Parole Comm'n, 68 F. Supp. 3d 92, 94–95 (D.D.C. 2014);
Taylor, 860 F. Supp. 2d at 16; Smallwood, 777 F. Supp. 2d at 150
(collecting cases); Leach v. U.S. Parole Comm’n, 552 F. Supp. 2d
250, 251 (D.D.C. 2007); Taylor v. Hollingsworth, No. 07-cv-970,
2007 WL 5614097, at *2 (D. Md. Oct. 9, 2007), aff’d 280 F. App’x
294 (4th Cir. 2008) (“The Commission does not exercise a
judicial function and its decisions do not violate the
separation of powers.”).
As to Petitioner’s next argument regarding the length of
his term of imprisonment and period of supervised release
resulting from his violation, the terms imposed by the Parole
Commission conform to the laws applicable to Petitioner.

Under

the D.C. Code, the sentence for a violation of supervised
release depends on the underlying conviction.
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All offenses

classified as class A felonies permit the Parole Commission to
impose up to five years of imprisonment at the first revocation
of supervised release.

See D.C. Code § 24–403.01(b)(7); see

also 28 C.F.R. § 2.219(a)(1).

Petitioner’s conviction for armed

aggravated assault violated D.C. Code § 22–4502, which is a
class A felony.

See Evans, 12 A.3d at 3 n.1; see also D.C. Code

§ 22–4502(a)(4) (2001) (“For purposes of imprisonment following
revocation of release authorized by § 24-403.01(b)(7), the
offenses defined by this section are Class A felonies.”).
Consequently, the Parole Commission could have imposed a total
term of imprisonment of five years for Petitioner’s violation of
supervised release.

Instead, it only imposed a thirty-six month

term of imprisonment followed by a twenty-four month term of
supervised release.

Such terms are within those authorized by

law.
In addition, “[t]he maximum authorized length of such
further term of supervised release shall be the original maximum
term of supervised release that the sentencing court was
authorized to impose for the offense of conviction, less the
term of imprisonment imposed by the [Parole Commission] upon
revocation of supervised release.”

28 C.F.R. § 2.219(b)(2).

The Parole Commission’s terms also conform to this requirement.
Petitioner’s conviction for aggravated assault while armed in
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violation of D.C. Code §§ 22–404.01, –4502 (2001), carried a
maximum prison sentence of thirty years.
4502.

See D.C. Code § 22-

Because the maximum sentence for Petitioner’s conviction

was more than twenty-five years, the maximum authorized term of
supervised release was five years.

See D.C. Code § 24–

403.01(b)(2)(A) (2001); see also 28 C.F.R. § 2.219(b)(2)(i).
Here, the Parole Commission revoked Petitioner’s supervised
release and ordered that he serve thirty-six months in prison
followed by twenty-four months on supervised release.

The

Parole Commission’s decision imposes both prison time and a new
period of supervised release for a total combined sentence of
sixty months, which complies with the District of Columbia Code
and the Parole Commission’s regulations.

See id.; see also D.C.

Code § 24–403.01 (2001); 28 C.F.R. § 2.219.

Based on the

foregoing, the Parole Commission acted within its statutory
authority when it imposed a thirty-six month sentence of
imprisonment followed by a twenty-four month term of supervised
release for Petitioner’s violation of his supervised release,
and the Petition will be denied.

See, e.g., Brice v. U.S.

Parole Comm’n, No. 10-hc-2270, 2011 WL 2746127, *2 (W.D.N.C.
July 13, 2011) (holding that Parole Commission acted within its
authority in issuing terms of imprisonment and supervised
release after supervised release was revoked because the terms
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complied with D.C. Code. § 24-403.01(b)(7)).
Petitioner’s argument that the Parole Commission could only
impose fifteen to sixteen months of imprisonment or supervised
release at revocation also lacks merit.

In support of his

argument, Petitioner cites D.C. Code § 24-221.03(a), entitled
“Jail time; parole,” which provides:
Every person shall be given credit on the maximum and
the minimum term of imprisonment for time spent in
custody, or on parole in accordance with § 24-406
[outlining procedure after revocation of parole], as a
result of the offense for which the sentence was
imposed. When entering the final order in any case,
the court shall provide that the person be given
credit for the time spent in custody, or on parole in
accordance with § 24-406, as a result of the offense
for which sentence was imposed.
Petitioner cites this statute for the proposition that “a
parolee is now given credit for all time served on supervised
release upon revocation when that person’s sentence is
recomputed.”

ECF No. 1 at 7.

That statute, however, would only

apply to revocations of parole, not supervised release, which is
explicitly governed by D.C. Code § 24-403.01.

See Taylor v.

Norton, No. 05-cv-1634, 2006 WL 1071517, at *1 n.5 (D.D.C. April
21, 2006) (“Petitioner is serving a term of supervised release,
not parole.

All of his arguments regarding parole, parole

revocation . . . credit for “street time” and the Parole
Commission's authority with respect District of Columbia
12

parolees are irrelevant as they do not apply to him.”).
Finally, to the extent that Petitioner’s reference to the
Ex Post Facto Clause in the Petition could be seen to raise an
Ex Post Facto Clause argument, there would be no merit to such
an argument.

The Ex Post Facto Clause prohibits retroactive

application of a law which increases the punishment for a crime
that an individual has already committed.
Youngblood, 497 U.S. 37, 42 (1990)).

Collins v.

See U.S. Const. Art. I, §

9 (“No . . . ex post facto Law shall be passed.”).

“One

function of the Ex Post Facto Clause is to bar enactments, which
by retroactive operation, increase the punishment for a crime
after its commission.” Garner v. Jones, 529 U.S. 244, 249 (2000)
(citations omitted).

To be successful, a petitioner first must

show that there has been a change in law or policy that was
given retrospective effect.

Shaffer v. Meyers, 163 F. App’x.

111, 113 (3d Cir. 2006).
Here, Petitioner has failed to meet his initial burden.
Petitioner has not demonstrated that D.C. Code § 24–403.01, the
relevant statutory provision that governs supervised release and
the revocation of supervised release for D.C. Code offenders,
has been retrospectively applied to him by the Parole
Commission.

The applicable provisions of section 24–403.01 were

enacted well before the Petitioner's offense in 2007 and
13

subsequent supervised release revocation in 2016, and the Court
can discern no retroactive application of them to Petitioner.
The Petition will be denied.
IV. CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice
or judge issues a certificate of appealability, an appeal may
not be taken from a “final order in a habeas corpus proceeding
in which the detention complained of arises out of process
issued by a State court.”

“‘[A] court of the District [of

Columbia] is a state court for purposes of section 2253(c),’ and
thus ‘a prisoner arrested or convicted pursuant to process or
judgment of the courts of the District must obtain a COA.’”
Wilson v. U.S. Parole Comm’n, 652 F.3d 348, 351-52 (3d Cir.
2011) (quoting Madley v. U.S. Parole Comm'n, 278 F.3d 1306,
1308, 1310 (D.C. Cir. 2002)).
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).

“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).
14

Here, Petitioner has failed to make a substantial showing
of the denial of a constitutional right.

Thus, no certificate

of appealability shall issue.
V.

CONCLUSION
For the above reasons, the Petition for Writ of Habeas

Corpus pursuant to § 2241, ECF No. 1, will be denied and a
certificate of appealability shall not issue.

An appropriate

Order follows.

Dated: October 29, 2018
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

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