Opinion
Civil Action No. 04-1382 (RJL).
February 11, 2005
MEMORANDUM OPINION
This matter comes before the Court on a petition for writ of habeas corpus. Petitioner alleges the United States Parole Commission has violated his due process rights by failing to conduct a timely rescission hearing. Based on the parties' filings, the existing record, and the applicable law, the Court will deny the petition.
Background
On August 24, 1991, in the Superior Court for the District of Columbia, petitioner was convicted of attempted robbery, possession with intent to distribute cocaine, and prison breach. United States Parole Commission's Response to Petition for Writ of Habeas Corpus ("Response"), Exhibit ("Ex.") A. On December 26, 2002, the Parole Commission ordered that petitioner's presumptive parole date was August 3, 2003. Id., Ex. C. Prior to his release on parole, while petitioner was incarcerated at a community corrections center, he refused to provide a urine sample as ordered by a staff member at the facility. Id., Ex. D. Following a hearing on April 18, 2003, the Disciplinary Hearing Officer found that petitioner had violated the conditions of the community corrections center by refusing to provide a urine sample. Id. That same day petitioner escaped from the facility. Id.
On April 30, 2003, the Parole Commission issued a Notice of Action ordering that petitioner's case be reopened and his parole date retarded based on his escape and refusal to provide a urine sample. Id., Ex. G. The Parole Commission further ordered that petitioner be scheduled for a rescission hearing upon his return to federal custody. Id.
Petitioner was arrested for second degree theft in the District of Columbia on August 11, 2003. Id., Ex. H. He pleaded guilty to the offense on October 6, 2003 and was sentenced by the Superior Court for the District of Columbia to 90 days imprisonment. Id. Petitioner was released from the D.C. Jail on July 19, 2004 and is confined at the Federal Correctional Institution in Cumberland, Maryland. The Parole Commission scheduled petitioner's rescission hearing for the week of December 13, 2004. Id., Ex. 1.
This Court retains jurisdiction over the habeas petition because at the time of its filing petitioner was in the custody of the D.C. Department of Corrections. See Rumsfield v. Padilla, 124 S.Ct. 2711, 2720 (2004).
Discussion
Petitioner contends that the failure of the Parole Commission to hold a timely rescission hearing violated his due process rights. Under the Parole Commission's regulations, once the Commission decides to retard a parole date, a rescission hearing is ordered to be held on the next available docket upon a parolee's return to federal custody. See 28 C.F.R. § 2.34. In this case, the Parole Commission did not schedule petitioner's rescission hearing for approximately five months.
The remedy for the Parole Commission's failure to hold a timely hearing is to conduct the hearing. See Robbins v. Thomas, 592 F.2d 546, 549 n. 7 (9th Cir. 1979). To prevail on his claim, petitioner must demonstrate that the delay was unreasonable and prejudicial. Villarreal v. United States Parole Comm'n, 985 F.2d 835, 837 (5th Cir. 1993); Vargas v. United States Parole Comm'n, 865 F.2d 191, 194 (9th Cir. 1988); Tippins v. Luther, 869 F.Supp. 331, 337 (W.D. Pa. 1994). The same standard applies in a parole revocation context. See Sutherland v. McCall, 709 F.2d 730, 732 (D.C. Cir. 1983); Crum v. U.S. Parole Comm'n, 814 F.Supp. 1, 3 (D.D.C. 1993).
Petitioner has made no allegation or offered any factual basis for a finding that the delay in this case was unreasonable or prejudicial. The Parole Commission set a rescission hearing for the week of December 13, 2004. Petitioner has received the only remedy available for his claim.
Conclusion
Petitioner's due process rights were not violated by the delay in the parole rescission process. Therefore, his petition for writ of habeas corpus will be denied and the case dismissed. A separate Order accompanies this Memorandum Opinion.