Young-Bey v. United States Parole Commission

Filing 22

MEMORANDUM OPINION re: 9 Motion To Dismiss, 10 Motion For Summary Judgment, 18 Motion For Dismissal Of Government Response For "Repugnancy" filed by John R. Young-Bey. (See Memorandum Opinion For Details). Signed by District Judge James C. Cacheris on 3/4/10. (nhall)

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

! " '

--;' , '

JohnR.Young.Bey,
Petitioner,
v.

)
) )
)

J I ««? - 4 2010
c V___ -:i f
l:08cv!172(JCC/JFA)

Patricia R. Stansberry,

)

)

Respondent.

)
MEMORANDUM OPINION

John R. Young-Bey, a federal inmate housed in the Eastern District of Virginia and proceeding eto se, has filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241,

challenging the calculation of his parole eligibility date by the Bureau of Prisons ("BOP"). On April
17, 2009, respondent filed a Motion to Dismiss the Petition, or in the Alternative, Motion for

Summary Judgment, along with a supporting memorandum and exhibits. Young-Bey was given the opportunity to file responsive materials, pursuant to Roseboro v. Garrison. 528 F.2d 309 (4th Cir. 1975), and he has filed both a reply and a motion to dismiss the government's response for
"repugnancy." For the reasons that follow, Young-Bey's petition will be dismissed as both

successive pursuant to 28 U.S.C. § 2244(a) and an abuse of the writ, and his motion to dismiss the government's response will be denied.
I. Background

On March 4,1983, the Superior Court for the District of Columbia sentenced Young-Bey to consecutive terms of imprisonment of twenty years to life for first degree murder, three terms of five to fifteen years for armed robbery, two terms of three to ten years for assault with a dangerous
weapon, and three to ten years for carrying a pistol without a license. Resp. Ex. A, Att. 1. On

December 16,1983, Young-Bey was sentenced in a separate D.C. case to additional terms of five

to fifteen years for armed robbery, five to fifteen years for assault with intent to commit robbery while armed, and five to fifteen years for another armed robbery, each to run consecutive to the
sentence Young-Bey already was serving, as well as consecutive to one another. Resp. Ex. A, Att. 2. When Young-Bey was received by the D.C. Department of Corrections, the foregoing sentences were aggregated to a minimum term of 54 years and a maximum of life. It also was determined that

Young-Bey was entitled to 333 days of pre-sentence jail credit. Resp. Ex. A, Att. 4.1 Young-Bey subsequently was transferred to the custody of the Bureau of Prisons ("BOP")
to serve out the remainder of his D. C. sentences. After independent computation, the BOP agreed

that Young-Bey's aggregate sentence amounted to 54 years to life, and that he was entitled to 333 days pre-sentence jail credit. Resp. Ex. A, Att. 5. It further determined that the sentence for first
degree murder carried a 20-year mandatory minimum term, during which Young-Bey would be

ineligible for parole or good-time credits. Id. In addition, the BOP deemed Young-Bey entitled to 4,080 days of good time credits, to be applied toward the 34-year non-mandatory portion of his 54year minimum term. When the credits were applied, Young-Bey's minimum term release or parole
eligibility date was determined to be February 1,2025. Resp. Ex. A, Att. 6.

On December 5, 2005, Young-Bey filed a petition for habeas corpus relief pursuant to 28 U.S.C. § 2241 in this Court, arguing that the BOP had violated his right to due process by

miscalculating his sentence, good time credits, and - most germane here - his parole eligibility dates.

'On January 27,1989, Young-Bey was sentenced in this court to an additional consecutive term
of 105 months for assault with a shank, assault on a correctional officer, and possession of a shank.
That sentence, which is not at issue here, subsequently was reduced to 84 months. United States v. Young. Case No. CR88-234-A (E.D. Va. 1989) (Ellis, J.). Resp. Ex. A, Att. 3.

Resp. Ex. B. Among Young-Bey's claims was the contention that he should have been granted a
parole hearing, so that he could begin service of other sentences after he served one-third of his

minimum sentence. Resp. Ex. B, Motion to Amend at 3. On May 30, 2006, respondent filed an Answer anc Motion for Summary Judgment, asserting that the computation of Young-Bey's sentence, in< :luding his good time and parole eligibility dates, was correct. Resp. Ex. C. Young-Bey
thereupon f led a "Motion for Dismissal Without Prejudice," conceding that "the error of his confinement does not lie with the above Respondent at this time, but exists within the official

records of the sentencing court." Resp. Ex. D. Respondent objected that the dismissal should be with
prejudice, si ice Young-Bey had admitted that he was not entitled to relief from the respondent. Resp. Ex. E. This Court agreed, and in an Order dated June 27,2006, noted that Young-Bey "concede[d] that the resp mdent's calculations are correct," and dismissed Young-Bey's § 2241 application with

prejudice, pursuant to Fed. R. Civ. P. 41(a)(2). Youne-Bevv. Warden. FCI. No.l :05cvl413 (E. D.
Va. June 27 2006); Resp. Ex. F. Young-Bey did not appeal that judgment.

In th s, Young-Bey's second § 2241 challenge to the computation of his sentence, he alleges that he has t een deprived of due process because the Parole Commission failed to apply "the old D.C. Law" to his sentence calculation. Pet. Mem. at 3. Had it done so, Young-Bey argues, he would
have been e igible for parole in 2005. IcL Respondent has filed a Motion to Dismiss or in the

Alternative, for Summary Judgment with a supporting memorandum of law and exhibits, arguing that the petition should be dismissed as successive and an abuse of the writ, and alternatively that Young-Bey' 3 claims are without merit. Petitioner was given the opportunity to file responsive
materials, pi rsuant to Roseboro v. Garrison. 528 F.2d 309 (4th Cir. 1975), and he has filed a reply

to the government's position as well as a pleading captioned as a motion for dismissal of the

government's response for "repugnancy." Respondent has filed a reply. Based on the pleadings and

record before this Court, it is uncontested that Young-Bey has exhausted administrative remedies

as to his claim (Docket # 4), so this matter is now ripe for review on the merits. For the reasons that
follow, the respondent's Motion to Dismiss will be granted, her alternate prayer for Summary

Judgment will be denied, as moot, and the petition will be dismissed as successive. Petitioner's

motion to dismiss the government's response for "repugnancy" will be denied.
II. Applicable Law

Title1 28 U.S.C. § 2244(a), as amended by the Antiterrorism and Effective Death Penalty Act
of 1996 ("AEDPA"), provides as follows:

No circuit or district court shall be required to entertain an application for a writ of habeas corpus to inquire into the detention of a person pursuant to a judgment of a court of the United States if it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application for a writ of habeas
corpus, except as provided in section 2255.

It ha i become well established that § 2244(a), as amended by the AEDPA, bars second or successive § 2241 applications that seek to relitigate issues that were adjudicated in a prior § 2241

proceeding. The Second, Third, Seventh and Ninth Circuits have held or noted in published opinions
that § 2244(j ) bars successive petitions under § 2241 directed to the same issue. Chambers v. United States. 106 F.3d 472,475 (2d Cir. 1997) (applying § 2244(a) to dismiss a second or successive § 2241 petitioi l seeking to re-litigate a federal prisoner's claim which had been asserted and denied in
a prior § 2241 petition); see Simon v. United States. 359 F.3d 139, 143 n.7 (2d Cir. 2004) (discussing j Chambers); Queen v. Miner. 530 F.3d 253, 255 (3d Cir. 2008) (noting that § 2244(a)
does not ref jrence § 2254 and thus by its terms applies to any habeas corpus application filed a

person in cu .tody pursuant to judgment of a United States court); Valona v. United States. 138 F.3d 693, 695 (7th Cir. 1998) (noting that § 2244(a) bars successive petitions under § 2241 "directed to
the same iss ae concerning execution of a sentence."); Barapind v. Reno. 225 F.3d 1100,1111 (9th
Cir. 2000).

The Tenth Circuit has concurred in unpublished opinions.

Jackson v. Morris. 8

Fed.Appx. 890 (10th Cir. 2001) (unpublished); Gibson v. Knowles. 166 F.3d 1220 (10th Cir. 1999)
(table).
Simi larly, prior to the enactment of the AEDPA, several circuit courts held that where a petitioner fl ed a previous § 2241 petition which was dismissed on the merits, § 2244(a) barred a second § 22 1 habeas petition. See George v. Perrill. 62 F.3d 333,334-35 (10th Cir. 1995); Glumb
v. Honstead 891 F.2d 872,873 (1 lth Cir. 1990); Povner v. United States Parole Comm'n. 878 F.2d

275, 277 (9ti Cir. 1989); Sacco v. United States Parole Comm'n. 639 F.2d 441,442-43 (8th Cir.

1981). The AEDPA amendments do not alter the reasoning of these circuits in applying § 2244(a)
to bar a successive § 2241 petition.

Juris s in the Eastern District of Virginia have weighed in on this question as well. In Zakiva
v. Reno. 52 F.Supp.2d 629, 632-634 & n.8 (E.D.Va. 1999), Judge Brinkema held that § 2244, as

amended by [the AEDPA, did not bar petitioner's successive § 2241 petition raising claims that had

not been addressed on the merits in petitioner's previous habeas petitions.2 Distinguishing Zakiva.
Judge Friedr lan held in Flemmine v. Brooks. No. 2:01cv582,2002 WL 3248847, at * 5 (E.D.Va.
June 21,200 2) (adopting the report and recommendation of the magistrate) that § 2244(a) did bar

a petitioner'! § 2241 successive petition alleging the same grounds as were denied on the merits by

2 The C >urt, however, made no distinction between § 2244(a) and § 2244(b), which refers
specifically Ijo second or successive claims brought pursuant to § 2254.

the United States District Court for the Northern District of West Virginia and the United States
Court of Appeals for the Fourth Circuit. In Sineletarv v. Dewalt. No. 2:04cv623, 2005 WL

1162940, at * 4 (E.D.Va. Apr. 5,2005) (unpublished), Judge Miller made a nearly identical report

and recomm sndation with respect to a successive § 2241 petition alleging the same grounds as were
denied on th; merits by the United States District Court for the District of Columbia.3 In Gates v. Stansberrv.No. l:07cv 1212,2008 WL 2165998 (E.D. Va. May 23,2008) (unpublished), afFd, 298
Fed. Appx.: 49,2008 WL 4726256 (4th Cir. Oct. 29.2008) (unpublished), Judge O'Grady applied
§2244(a)to lismiss as successive a § 2241 challenge to a revocation of parole. Although the Fourth Circuit has y ?t to address this issue, it has upheld a district court's order dismissing a § 2241 habeas

petition as

an unauthorized second or successive motion" under § 2244(a) in at least two

unpublished opinions. Trader v. United States. 191 F.3d 448 (4th Cir. 1999) (table); Gates. 298 Fed. Appx. at 245 Thefi ing of a second or successive habeas application that seeks to raise a claim that was or

could have teen litigated in an earlier proceeding is also precluded by the common law. In
McCleskev v Zant. 499 U.S. 467 (1991), the Supreme Court explained that by prohibiting prisoners

from filing multiple petitions for relief from the same judgment, the "abuse of the writ" doctrine serves the im] >ortant ends of finality, resource efficiency, certainty, and stability, id at 491-96. The Court outlinep the contours of the doctrine in detail, as follow: When a prisoner files a second or subsequent application, the

3 The distijict judge di

adopted Judge Miller's Report and Recommendation. Sineletarv v. Dewalt.

No. 2:04cv6 3, docket entry No. 9.

4The unpublished opinions cited in this Memorandum Opinion are contained in the record at
Resp. Ex. H.

government bears the burden of pleading abuse of the writ. The government satisfies this burden if, with clarity and particularity, it notes petitioner's prior writ history, identifies the claims that appear

for the first time, and alleges that petitioner has abused the writ. The burden to disprove abuse then becomes the petitioner's. To excuse his failure to raise the claim earlier, he must show cause for failing to raise it and prejudice therefrom as those concepts have been defined in our procedural default decisions. The petitioner's opportunity to meet the burden of cause and prejudice will not include an evidentiary hearing if the district court determines as a matter of law that petitioner cannot satisfy the standard. Ifpetitioner cannot show cause, the failure to raise the claim in an earlier petition may nonetheless be excused if he or she can show that a fundamental miscarriage ofjustice would result from
a failure to entertain the claim. Id. at 494-95,

Subsequently, in Zavas v. Immigration & Naturalization Service. 311 F.3d 247,256-57 (3d
Cir. 2002), tr e Third Circuit considered whether the enactment of the AEDPA five years after the

Supreme Court decided McCleskev precluded application of the "abuse of the writ" doctrine to
second or suqcessive § 2241 applications, and concluded that it did not, because the "AEDPA dealt

with habeas p etitions under § 2254 and § 2255 by building on McCleskev rather than supplanting it."
Id, at 257; a xord. Queen. 530 F.3d at 255.

Since Zavas. the Fourth Circuit has affirmed by

unpublished

pinion numerous decisions by district courts where a second or successive § 2241

petition was dismissed as an abuse of the writ. See, e^, Griffin v. U. S. Parole Commission. No.
3:02cv936, 2 303 WL 23961849 (E.D. Va. Nov. 19, 2003), affd. 94 Fed. Appx. 993, 2004 WL

859402 (4th Cir. 2004) (unpublished); see also. Jackson v. Snvder. No. 5:05-HC-811-H, 2007 WL ir. 4124348(El .N.C. Sept. 5,2007), affd, 239 Fed. Appx. 779, 790 n., 2007 WL 2555340 (4th Cir.
2007)(unpub lished); Williams v. Wendt. No. l:04cvl36, 2006 WL 1004806 (N.D.W.Va. Apr. 7,

2006) (unpublished); Staino v. U. S. Parole Commission. No. 5:04-HC-962-FL, 2005 WL 5726582

at *3 (E.D.N C. Nov. 23,2005) (unpublished).

III. Analysis

Consideration of Young-Bey's present claim that he has been deprived of due process because

the BOP erred in calculating his parole eligibility date is precluded both by § 2244(a) and as an abuse
of the writ. 11 his prior § 2241 proceeding before this Court, Young-Bey in pertinent part initially
challenged th ? BOP's calculation of his parole eligibility date, Resp. Ex. E, but eventually conceded
"that the respondent's calculations are correct" Resp. Ex. F at 1, and moved to voluntarily dismiss his habeas ap jlication. This Court dismissed the petition with prejudice pursuant to Fed. R. Civ. P.
41 (a)(2), id it 2, and no appeal was taken of that decision. It is well established in this circuit that such a volunt uy dismissal with prejudice under Rule 41 (a)(2) constitutes a complete adjudication
on the merits of the dismissed claim. See, e^g., Harrison v. Edison Bros. Apparel Stores. Inc.. 924 F.2d 530, 53-4 (4th Cir. 1991). Therefore, the claim Young-Bey asserts here was adjudicated on the merits in a prior § 2241 proceeding, and this successive petition is barred from consideration by §
2244(a).

In addition, Young-Bey's claim is also precluded from consideration because it represents an
abuse of the vy rit. Respondent has met her initial burden as outlined in McCleskev by identifying the

claim Young- Bay raised in his first habeas petition, abandoned in his motion for voluntary dismissal, and now seel :s to raise again: that is, the claim that his parole eligibility date was improperly
calculated, s< that his parole eligibility hearing has been unlawfully delayed. Resp. at 1 - 2.5

5To the ex ent that Young-Bey might argue that the claim expressed here differs from that raised in his earlier § 2241 proceeding on the ground that he alleges here that the Parole Commission was responsible or the improper calculation of his parole eligibility date, whereas he previously

In an i ipparent attempt to satisfy the cause and prejudice standard, as required by McCleskev.

Young-Bey first protests in his reply to the response that the respondent has "negligently or
maliciously" mischaracterized his claim, which he then articulates for the first time as being the
argument thai the BOP has relied on a conviction which was not his, entered in case number F2737-

82, in arriving at his sentence computation.6 He argues that the conviction could not have been his
because the o: Tense occurred while he was incarcerated; the record of case number F2737-82 reflects a birth date cf 1949 for the perpetrator, while he was born in 1952; and he was not in court on
December 16 1983, when the sentence for case number F2737-82 was imposed. However, exhibits

supplied by tr e respondent in connection with her reply to these assertions demonstrate that they are
both incorrec and disingenuous.

Young-Bey was arrested by D.C. authorities on April 5,1982, for a crime which occurred on
March 16, 19 2. Reply Ex. A, Att. 1 - 2. While in custody for that offense, Young-Bey was both

arrested and charged on May 14,1982, for additional D. C. offenses in case number F2737-82. Id.;

contended that the fault lay with the BOP, such a distinction is irrelevant. Young-Bey has offered
no reason

wh,y his current claim against the Parole Commission could not have been raised in that

prior action.

Respond* nt argues that Young-Bey's claim that the judgment entered in case number F2737-82

is not attributable to him is not properly before the court in this § 2241 proceeding, because it attacks
the validity cf his detention rather than the execution of his sentence. Reply at 3 - 6. To the extent that Young-I ley's argument is interpreted as a free-standing claim for relief, respondent is correct: such a challenge would be cognizable only if brought in the D.C. Superior Court pursuant to D.C. Code § 23-1 0, which provides a remedy akin to 28 U.S.C. § 2255 for prisoners sentenced in that tribunal. See Swain v. Presslev. 430 U.S. 372 (1977). However, it appears that Young-Bey's claim

of misidentif cation in connection with case number F2737-82 also can fairly be read as an attempt to avoid app ication of the abuse of the writ doctrine to the instant petition. Accordingly, in this Memorandui i Opinion the argument is considered solely in the latter context, rather than as a direct challenge to i he legality of Young-Bey's detention pursuant to the conviction entered in F2737-82.

Reply Ex. B The records indicate that case number F2737-82 was filed on May 14, 1982 but, contrary to Young-Bey's contention, they contain no indication that the offense was committed on that date. Th is, Young-Bey's contention that he could not have committed the offenses charged in
case number F2737-82 because he was incarcerated when it occurred finds no support in the record.

More egregious is Young-Bey's assertion that he could not have perpetrated the crime in case
number F27: 7-82 because he was bom in 1952, and the birth date of the defendant in that case is

indicated as 1949. However, as respondent's exhibits demonstrate, the discrepancy is readily
explained b) the fact that more than one birth date is listed in Young-Bey's National Crime

Information < Center record. As petitioner himself undoubtedly is aware, at various times he has used the names John Rufus Young, John R. Young, John Young, John R. Young-Bey, and John Rufus Young-Bey, ind he has given his birth date as both 1949 and 1952. Reply Ex. A, J 7. Therefore,

petitioner's reliance on the differing birth dates to attempt to disclaim ownership of the conviction
in case number F2737-82 is patently meritless.
Youn ;-Bey's assertion that he did not appear in court on December 16, 1983, and so could

not have been sentenced in case number F2737-82 on that date, is simply mistaken. The Judgment and Commit nent Order for that case show that John R. Young-Bey was sentenced in the D.C. Superior Court on December 16,1983, Reply Ex. A, Att. 3, and notes of a subsequent hearing before
the D. C. Pan >le Board also reflect that Young-Bey "was sentenced additionally to a term of 10 to 30

years conseci tive in Case No. F2737-82" on December 16,1983. Id, Att. 5. Thus, to the extent that
Young-Bey zttempts to show that cause and prejudice for the filing of this successive § 2241
application i demonstrated by the erroneous attribution to him of the conviction in F2737-82, his

argument fails.

10

Young-Bay also makes conclusory references in his initial petition and his reply to the
response to

he "deliberate bypass" standard, which in his view was employed by the Parole

Commission to deprive him of a timely hearing. The precise nature and context of Young-Bey's
reliance on tre

deliberate bypass concept are unclear, but suffice it to say that since the deliberate

bypass standard established in Favv.Noia. 372 U.S. 391 (1963) was overruled in favor of the cause
and prejudic

inquiry in 1991, Coleman v. Thompson. 501 U.S. 722 (1991), it can have no

applicability n this case. Petitioner in his reply also makes cryptic reference to a "miscarriage of justice," but he ends of justice do not require further inquiry in this case because petitioner has

presented no < vidence to demonstrate his actual innocence. SeeKuhlmannv.Wilson.477TIS
445-54(1986
Lastly an abuse of th

because this successive petition is subject to dismissal pursuant to § 2244(a) and as
writ, the Court will refrain from adjudicating respondent's alternate argument that the

claim express ed lacks substantive merit, since to do so in the Court's view would abrogate the
important pol cies those doctrines are designed to serve. McCleskev. 499 U.S. at 491-96. IV. Conclusion

For the foregoing reasons, respondent's Motion to Dismiss will be granted, and this successive
application for reliefunder § 2241 will be dismissed, with prejudice. Respondent's alternative Motion for Summary, udgment will be denied, as moot, and petitioner's motion to dismiss the government's
response for"Repugnancy"

will be denied. An appropriate Order shall issue.
2010.

Entered this

day of

Alexandria, V

rginia

/§/ James C. Cacheris United States District Judge
11