Opinion
Civil Action No. 04-2266 (PLF).
April 19, 2005
MEMORANDUM OPINION
This matter is before the Court on Petitioner Steven McQueen's petition for a writ of habeas corpus. For the reasons stated herein, the Court denies the petition.
At the time he filed this petition, petitioner was detained at the D.C. Jail pursuant to a parole violator warrant. Pet. at 2, 4. Although he since has been transferred to the Federal Correctional Institution in Petersburg, Virginia, this Court retains jurisdiction. See Rumsfeld v. Padilla, ___ U.S. ___, 124 S.Ct. 2711, 2720 (2004); Chatman-Bey v. Thornburgh, 864 F.2d 804, 806 n. 2 (D.C. Cir. 1988).
I. BACKGROUND
Petitioner alleges that he is detained unlawfully "on a `parole violation' without a legal `judgment and commitment court order.'" Pet. at 2.
In 1993, petitioner was convicted in the Superior Court of the District of Columbia for attempted distribution of cocaine, and was sentenced to a three to nine year term of imprisonment. Resp't Resp., Ex. A (Amended Judgment Commitment Order, Criminal No. F-6552-93). In 1994, he was convicted of attempted burglary, and was sentenced to a consecutive two to six month term of imprisonment. Id., Ex. B (Judgment Commitment Order, Criminal No. F-10222-94). The District of Columbia Board of Parole granted petitioner parole on February 4, 1997. Id., Ex. C (Certificate of Parole). On the recommendation of his parole officer, the Parole Board issued a parole violator warrant in April 1998 for petitioner's alleged criminal violation of the conditions of his release. Id., Ex. D (Post Release Nonhearing Determination Record indicating petitioner's arrest for unauthorized use of a vehicle). The parole officer amended his recommendation to reflect petitioner's conviction for the second degree rape of a 13-year old girl in Prince George's County, Maryland. Id., Ex. E (September 11, 1998 Addendum). The warrant was lodged as a detainer. See id., Ex. G (Warrant).
A Parole Commission hearing examiner conducted a revocation hearing in April 2002. Resp't Resp., Ex. H (Revocation Hearing Summary). The Parole Commission revoked parole, and set a parole effective date of November 11, 2002. Id., Ex. I (Notice of Action dated April 29, 2002). This date was postponed on three occasions. See id., Ex. J (Notice of Action dated October 17, 2002), Ex. K (Notice of Action dated February 5, 2003), Ex. L (Notice of action dated March 10, 2003). The Parole Commission released petitioner on parole on April 9, 2003. Id., Ex. M (Certificate of Parole). Among the conditions of his release was that he have no contact with minor children without permission from his supervision officer. Id.
Petitioner violated the conditions of his release by having unauthorized contact with his own children and the children of the female friend with whom he resided. Resp't Resp., Ex. N (Alleged Violation(s) Report). The Parole Commission issued a Letter of Reprimand, expressly advising petitioner that further noncompliance with the conditions of his release may result in arrest and return to custody. Id., Ex. O (Letter of Reprimand). Because of petitioner's further unauthorized contact with minor children, the Parole Commission issued a violator warrant. Id., Ex. P (Addendum to Alleged Violation(s) Report), Q (Warrant). The warrant was executed on October 12, 2004, at which time petitioner was taken into custody. Pet. at 4. Following a hearing on November 22, 2004, the Parole Commission revoked petitioner's parole and set a presumptive reparole date of February 12, 2006. Resp't Resp., Ex. S (Hearing Summary), T (Notice of Action dated January 3, 2005).
Contrary to petitioner's assertion, it does not appear that he was taken into custody for "dirty urine." See Pet. at 4-5.
II. DISCUSSION
Generally, petitioner challenges the Parole Commission's authority to return him to custody. First, he asserts that the Parole Commission "is an unlawful parole board entity . . . that is `impersonating' to be `Article III judges' to `re-sentence all D.C. Code offenders,' without the power of being lawfully under the `Judicial Branch.'" Pet. at 3, 6. Second, petitioner contends that the Parole Commission "added a 7 years new sentence to his expiration sentence and take the petitioner's street time back," in violation of the ex post facto and double jeopardy clauses of the United States Constitution. Id. at 6. Neither of these arguments has merit.
Petitioner misunderstands the Parole Commission's function. It cannot impose a prison sentence on an offender; that function rests with the Superior Court of the District of Columbia. See, e.g., D.C. Code § 11-923(b) (granting jurisdiction to Superior Court over any criminal case under District of Columbia law). By statute, the Parole Commission has full authority to grant, deny, or revoke a District of Columbia offender's parole, and to impose or modify conditions upon an order of parole. See D.C. Code § 24-131(a). If a parolee allegedly has violated conditions of his release, the Parole Commission is authorized to "[i]ssue a warrant for the apprehension and return of the offender to custody." 28 C.F.R. § 2.98(a)(2). It is authorized to "consider all available and relevant information concerning the prisoner's conduct while on parole." 28 C.F.R. § 2.81(d). Among the available sanctions for a parolee's criminal conduct while on parole is his return to custody. See 28 C.F.R. § 2.20. The fact that petitioner finds himself in custody long after his original Superior Court sentence would have expired is due to his own conduct while on parole. Furthermore, petitioner is not entitled to receive credit toward service of his sentence for "street time." See Davis v. Moore, 772 A.2d 204 (D.C. 2001) (en banc) (holding that retroactive application of Noble does not violate due process and ex post facto clauses); United States Parole Comm'n v. Noble, 711 A.2d 85 (D.C. 1998) (concluding that time offender spends on parole before revocation cannot be credited toward service of sentence).
A writ of habeas corpus shall not extend to a District of Columbia prisoner unless he is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2241(c)(3) (1994). Petitioner has made no such showing, and, therefore the Court must deny his petition. An Order consistent with this Memorandum Opinion will be issued this same day.