Washington v. United States Parole Commission

Filing 12

MEMORANDUM AND ORDER - AND NOW, for the reasons set forth in the accompanying memorandum of law, IT IS HEREBY ORDERED THAT the petition for writ of mandamus (Doc. 1) is DISMISSED in part and DENIES in part as follows: 1) Petitioner's claim regar ding a probable cause determination is DISMISSED AS MOOT. 2) Petitioner's claim regarding a revocation hearing is DENIED. 3) Petitioner's request for sanctions is DENIED. 4) Respondent is directed to notify the court within 30 daus of the scheduling of a revocation hearing as to Petitioner. 5) The Clerk of Court is directed to CLOSE this case.Signed by Honorable Sylvia H. Rambo on 3/9/12. (aaa )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JAMES WASHINGTON,

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Petitioner
v.
UNITED STATES PAROLE
COMMISSION,
Respondent

CIVIL NO. 1:CV-11-01287
(Judge Rambo)

MEMORANDUM
Before the court is a petition for writ of mandamus filed by Petitioner James
Washington, a District of Columbia (“D.C.”) parolee being held on an executed
D.C. parole violator warrant. Petitioner argues that the United States Parole
Commission (“USPC”) failed to provide him with a probable cause determination
and parole revocation hearing within the time provided in their regulations. As
relief, he seeks an order directing the USPC to conduct a parole revocation hearing.
He also requests sanctions. For the reasons that follow, the petition will be
dismissed in part and denied in part.

I.

Background
A.

Facts

Respondent provides the following pertinent facts with respect to the status
of Petitioner’s revocation hearing.1 On June 3, 2005, Petitioner was sentenced by
the District of Columbia Superior Court to a five-year term of imprisonment for
armed robbery and possession of a firearm during a crime of violence, with a
subsequent three-year term of supervised release. (Doc. 8 at 2.) Petitioner began
his supervised release term on or about August 3, 2009. (Id. at 2-3.) Under the
conditions of supervision, Petitioner was to remain in the Washington D.C.
metropolitan area, including the District of Columbia, Prince George’s and
Montgomery Counties in Maryland, and Arlington and Fairfax Counties in
Virginia. (Id. at 3.)
On March 3, 2011, the USPC issued a warrant charging Petitioner with
violating the conditions of supervision by leaving the district of supervision
without permission, and failing to report to his supervising officer as directed.2
(Id.) On March 21, 2011, the USPC supplemented its warrant with additional law
violation charges of robbery, aggravated assault, simple assault, theft by unlawful

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In support of the facts set forth in its response, Respondent attaches nine exhibits
confirming the facts asserted. (Doc. 8-1.)
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Pursuant to the transfer of authority established by the National Capital Revitalization &
Self-Government Improvement Act of 1997, Pub. L. No. 105-33, § 11231(a)(1), 111 Stat. 712,
745; D.C. Code § 24-1231, jurisdiction over D.C. warrants was transferred from the District of
Columbia Board of Parole to the USPC.
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taking or disposition, and retail theft.3 (Id.) Petitioner had been arrested on those
charges by North Middleton Township, Pennsylvania police on February 4, 2011.
(Id.)
On March 21, 2011, the United States Marshal Service executed the USPC’s
parole violater warrant as to Petitioner. (Id. at 4.) In a letter dated March 21, 2011,
the USPC requested that the United States Probation Office for the Middle District
of Pennsylvania conduct a preliminary interview. (Id.) On March 22, 2011, a
preliminary interview was conducted. (Id.) At the interview, Petitioner denied all
of the charges, but admitted to being arrested on the law violation charges. (Id.)
Petitioner requested appointment of counsel for a local revocation hearing, and
requested an adverse witness. (Id.)
By letter dated June 6, 2011, the USPC informed Petitioner that it had found
probable cause to believe that he had violated the conditions of supervision as
charged, and that a local revocation hearing would be scheduled. (Id.) That local
revocation hearing was scheduled for September 9, 2011. (Id.)
In a subsequent status report filed on February 28, 2012, the Respondent
provided the following further facts related to the status of Petitioner’s revocation
hearing. (Doc. 10.) On September 7, 2011, two days before the scheduled

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This supplement was based on a February 1, 2011 incident in which Petitioner and a
female co-defendant allegedly exited a grocery store with a cart full of unbagged and unpaid
items. (Doc. 8 at 3.) When the store manager approached the couple, Petitioner struck him in
the face, causing a 2-inch laceration under his eye. (Id.)
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revocation hearing, Petitioner’s counsel requested a continuance of the local
revocation hearing pending the outcome of the state criminal proceedings against
Petitioner, scheduled for October 10, 2011.4 (Doc. 10 at 1.) On December 5,
2011, the USPC requested that Petitioner’s counsel update it on the status of the
state criminal charges. (Id.) The USPC also informed counsel that it had learned
from the National Crime Information Center that Petitioner had pleaded guilty to
retail theft and robbery on November 1, 2011, and inquired whether sentencing had
taken place. (Id. at 1-2.) The state sentencing was scheduled for December 20,
2011. (Id. at 2.) Because of the new conviction, Petitioner was no longer entitled
to a local revocation hearing; rather, the USPC converted his case to one in which
an institutional revocation hearing was required.5 (Id.)
On January 5, 2012, the Federal Public Defender’s Office informed the
USPC that Petitioner had been moved from the Northern Neck Regional Jail in
Virginia to the District of Columbia Jail on January 4, 2012. (Id.) Respondent
states,
It appears this happened because [Petitioner] was supposed to have
been sentenced on December 20, 2011, and the United States

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In support of the facts set forth in the status report, Respondent attached nine exhibits
confirming the facts asserted. (Doc. 10 at 2-13.)
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As set forth by Respondent, pursuant to 28 C.F.R. § 2.102(a), whether or not a parolee
is entitled to a local revocation hearing rather than an institutional hearing turns on whether he
has either admitted to the charges against him or received a new conviction while on parole. Id.
An institutional hearing is required if a parolee received a new conviction, and a local hearing is
required if a parolee has denied all the charges against him. Id.
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Marshals Service believed that sentencing had occurred; however, the
state court continued his sentencing to January 17, 2012, directing the
Probation Service to provide information regarding whether or not
[Petitioner] was serving a federal sentence.
(Id.) In his reply to the status report, Petitioner adds that he was in fact moved out
of the state on December 12, 2011, prior to the state sentencing scheduled for
December 20, 2011. (Doc. 11 at 1-2.)
On January 6, 2012, the USPC again informed Petitioner that it had found
probable cause to believe he had violated the conditions of supervision as charged,
and was ordering his transfer to a federal institution for an institutional revocation
hearing. (Doc. 10 at 3.) On that same day, the USPC requested that the Federal
Bureau of Prisons (“BOP”) designate Petitioner to a federal institution. (Id.) As
conceded by Respondent, this request for designation was sent in error, as the
USPC was under the mistaken belief that state sentencing had occurred as
scheduled on December 20, 2011. (Id.)
By communication dated January 26, 2012, the USPC informed the
Marshals Service that Petitioner had been moved out of Pennsylvania before his
state sentencing, and requested that he be moved back to the Cumberland County
Jail in Pennsylvania for sentencing on the new state conviction. (Id.) In its
response to the USPC request, the Marshals Service stated that it would try to
move him as requested. (Id.) Thereafter, Petitioner was designated to the Federal
Detention Center in Philadelphia, Pennsylvania, where he was confined as of the

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date of the filing of the status report on February 28, 2012. (Id.) On that date, the
USPC requested that the BOP cancel the designation of Petitioner and allow the
Marshals Service to transport him to the Middle District of Pennsylvania for
sentencing in the state matter. (Id. at 3-4.) Petitioner’s revocation hearing will be
conducted following the state sentencing. (Id. at 4.)
B.

Procedural History

Petitioner filed his petition for writ of mandamus on July 11, 2011,
requesting an order directing Respondent to schedule a revocation hearing. (Doc.
1.) By order dated July 26, 2011, the court directed service of the petition on
Respondent. (Doc. 4.) On August 29, 2011, Respondent filed a response to the
petition, arguing that the petition was moot because Respondent’s revocation
hearing had been scheduled and thus the relief requested had been granted. (Doc.
8.) On February 21, 2012, the court directed Respondent to file a status report
informing the court of the status of Petitioner’s revocation hearing. (Doc. 9.) On
February 28, 2012, Respondent filed a status report. (Doc. 10.) Petitioner filed his
reply on February 29, 2012. (Doc. 11.) Thus, the petition is ripe for disposition.

II.

Discussion
In the response to the instant petition, Respondent argues that the petition

should be dismissed in part and denied in part. Specifically, Respondent contends
that the petition should be dismissed as moot because Petitioner has received the
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remedy he requested. In addition, Respondent argues that Petitioner’s request for
sanctions should be denied. The court will address each argument in turn.
A.

Probable Cause Determination & Revocation Hearing

As stated above, Respondent argues that the petition is moot because
Petitioner has received the remedy he requested. Upon review, the court will
dismiss as moot Petitioner’s claim regarding a probable cause determination, but
deny without prejudice his claim regarding a revocation hearing.
Article III of the Constitution provides that the judicial power of the United
States shall extend to “cases” and “controversies.” U.S. CONST., art. III, § 2;
Rosetti v. Shalala, 12 F.3d 1216, 1223 (3d Cir. 1993). Federal courts lack
authority to decide moot cases. Liner v. Jafco, Inc., 375 U.S. 301, 306 n.3 (1964).
If events occur during litigation that eliminate the plaintiff’s personal stake in the
outcome of the suit, the case must be dismissed as moot. Rosetti, 12 F.3d at 1224.
In the present case, Petitioner seeks a court order requiring the USPC to
advise him of its probable cause determination and hold a parole revocation
hearing. Turning first to the probable cause determination, Respondent attaches to
his response a USPC letter to Petitioner dated June 6, 2011, informing Petitioner of
its probable cause determination. (Doc. 8-1 at 33-35.) Thus, as Petitioner’s
requested remedy has been received, the claim regarding a probable cause
determination will be dismissed as moot.

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As to the revocation hearing, Respondent contends that Petitioner’s claim is
moot because, although the hearing originally scheduled for September 9, 2011 did
not take place, the parties have agreed that a hearing will be rescheduled once
Petitioner has been sentenced on his state charges. Respondent stresses that it is
Petitioner’s counsel who has requested that the revocation hearing take place after
Petitioner is sentenced on his state charges.6 (Doc. 10 at 4.) Petitioner does not
deny this assertion. (See Doc. 11.) Thus, the pertinent issue here, according to
Respondent, is whether Petitioner’s claim with respect to the revocation hearing is
moot since the USPC has agreed not to schedule the revocation hearing until after
Petitioner has been sentenced in state court. However, for the reasons set forth
below, this claim will not be dismissed as moot; rather it will be denied without
prejudice.
A parolee is entitled to a revocation hearing within a reasonable time. See
Morrissey v. Brewer, 408 U.S. 471, 489 (1972). To obtain relief, the parolee must
demonstrate not only that the delay was unreasonable, but also that the delay

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Attached as an exhibit to Respondent’s status report is an email from the USPC which
states, in part,
[USPC] received a telephone call from [Petitioner’s counsel] who, on behalf of
[Petitioner], requested a continuance of the Local Hearing pending the outcome of
court proceedings. Based on information provided, [Petitioner] is scheduled for
trial on 10/10/11. The outcome of the trial will determine if a Local or
Institutional Hearing is applicable. The continuance is granted.
(Doc. 10-1 at 3.) Further exhibits attached indicate that Petitioner’s revocation hearing is to be
scheduled once he is sentenced in state court. (Id. at 4-13.)
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resulted in prejudice. See Vargas v. United States Parole Comm’n, 865 F.2d 191,
194 (9th Cir. 1988) (“[A] preliminary hearing delay of 40 days without any
prejudice is not unreasonable”); Heath v. United States Parole Comm’n, 788 F.2d
85, 89-90 (2d Cir. 1986) (“Absent prejudice or bad faith on the Commission’s part,
the appropriate remedy is not a writ of habeas corpus, but a writ of mandamus to
compel compliance with the statute.”); Maslaukas v. United States Bd. of Parole,
639 F.2d 935, 938 (3d Cir. 1980) (finding that where petitioner asserts unlawful
delay of dispositional review of detainer, habeas relief was improper because
petitioner had failed to show that the delay was unreasonable and prejudicial).
Here, Petitioner has not demonstrated that a delay in his revocation hearing is
unreasonable and prejudicial, or is based on bad faith on the part of the USPC.
While the record shows that there was some confusion as to when Petitioner’s state
sentencing would occur, the court is not willing to accept that any delay on the part
of USPC in holding the revocation hearing was based on unreasonable or
prejudicial tactics or motives. In fact, it was Petitioner’s own counsel who
requested a continuance of the hearing pending the outcome of the state sentencing
proceedings. (See Doc. 10-1 at 3.) Further, as noted by Respondent, Petitioner
will not be prejudiced because (1) his period of confinement and subsequent
supervision will not be lengthened by his not having had an earlier revocation
hearing, (2) his sentence has not been shortened or lengthened as a result of the
hearing’s delay, and, (3) should Petitioner again violate the conditions of
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supervision and return to custody, the hearing’s delay will have no impact on any
further decisions with respect to Petitioner. (Doc. 8 at 6-7) (citing Weinstein v.
Bradford, 423 U.S. 147, 149 (1975)). In short, given this record before the court,
Petitioner has failed to establish that the delay in the
scheduling of his revocation hearing is unreasonable or prejudiced him in any
manner.
Moreover, the court is aware that pursuant to 28 C.F.R. § 2.101, if a parolee
is convicted of a new crime, as is the case here, an institutional revocation hearing
shall be scheduled within ninety days of the parolee’s retaking. See 28 C.F.R. §
2.101(e). In this case, the relevant date for determining the timeliness of
Petitioner’s revocation hearing is March 21, 2011, the date the warrant was
executed. To date, Petitioner’s revocation hearing has not been scheduled and thus
does not fall within the mandated ninety-day time frame. However, Petitioner’s
counsel requested a continuance of Petitioner’s revocation hearing pending the
outcome of the state proceedings against him. To that end, the court takes judicial
notice of the fact that Pennsylvania’s Unified Judicial System webportal indicates
that Petitioner was directed to appear for sentencing in the Cumberland County,
Pennsylvania court on February 28, 2012, and his sentence was imposed on March
1, 2012. Commonwealth v. Washington, CP-21-CR-0000471-2011 (available at
http://ujsportal.pacourts.us/DocketSheets/CPReport.aspx?docketNumber=CP-21CR-0000471-2011). Although the warrant as to Petitioner was executed on March
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21, 2011, the USPC, at the request of Petitioner’s counsel, agreed to continue
Petitioner’s revocation hearing to a time after he was to be sentenced in state court,
thus converting his hearing to an institutional hearing rather than a local hearing.
(See Doc. 10-1 at 3.) Due to counsel’s role in this determination, the court again
finds that the delay in scheduling the revocation hearing was neither unreasonable
nor prejudicial to Petitioner.
Importantly, now that Petitioner has been sentenced in state court only very
recently, it is incumbent on the USPC to conduct Petitioner’s revocation hearing.
The court would expect the USPC to conduct this hearing “within a reasonable
time.” See Morrissey, 408 U.S. at 489. In an abundance of caution to Petitioner’s
rights with respect to a revocation hearing, the court will direct Respondent to
notify the court of the date set for the revocation hearing within thirty (30) days of
such scheduling.
B.

Sanctions

In his petition, Petitioner also requests that the court impose sanctions based
on the USPC’s failure to comply with its regulations. Given the record in this case,
the court is not inclined to do so, and therefore that request will be denied.

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III.

Conclusion
For the reasons set forth herein, the petition for writ of mandamus will be

dismissed in part and denied in part. An appropriate order will issue.

s/Sylvia H. Rambo
SYLVIA H. RAMBO
United States District Judge
Dated: March 9, 2012.

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JAMES WASHINGTON,
Petitioner
v.
UNITED STATES PAROLE
COMMISSION,
Respondent

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CIVIL NO. 1:CV-11-01287
(Judge Rambo)

ORDER
AND NOW, for the reasons set forth in the accompanying memorandum of
law, IT IS HEREBY ORDERED THAT the petition for writ of mandamus (Doc.
1) is DISMISSED in part and DENIED in part as follows:
1) Petitioner’s claim regarding a probable cause determination is
DISMISSED AS MOOT.
2) Petitioner’s claim regarding a revocation hearing is DENIED.
3) Petitioner’s request for sanctions is DENIED.
4) Respondent is directed to notify the court within thirty (30) days of the
scheduling of a revocation hearing as to Petitioner.
5) The Clerk of Court is directed to CLOSE this case.
s/Sylvia H. Rambo
SYLVIA H. RAMBO
United States District Judge
Dated: March 9, 2012.