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MUHAMMAD v. MENDEZ

April 15, 2002

HATIM MUHAMMAD, PETITIONER
V.
JAKE MENDEZ, ET AL., RESPONDENTS



The opinion of the court was delivered by: Sylvia H. Rambo, United States District Judge.

MEMORANDUM

This case is a habeas corpus petition brought by Hatim Muhammad against Warden Jake Mendez of the United States Penitentiary at Allenwood in White Deer, Pennsylvania and the United States Parole Commission ("Commission") filed pursuant to 28 U.S.C. § 2241.*fn1 Petitioner raises various procedural due process violations regarding his initial parole hearing on April 26, 2000 and challenges the Commission's decision to depart from the guideline ranges for setting a reconsideration hearing. The matter is fully briefed and ripe for consideration. Because Petitioner relies upon inapplicable federal parole statutes and the Commission did not abuse its discretion in departing from the guideline ranges, Muhammad's petition will be denied.

I. Background

Petitioner was sentenced by the Superior Court for the District of Columbia in 1975 to 15 to 45 years for rape while armed. (Doc. 7, Response to Habeas Petition.) Muhammad was paroled by the D.C. Board of Parole on July 11, 1989. (R. 1, Certificate of Parole.)*fn2 Muhammad was sentenced on September 30, 1991 to 7 to 21 years consecutive for burglary and armed robbery, and is serving an aggregate 14 to 73 year sentence for these offenses and the parole violation. (R. 2, DOC Face Sheet.) The D.C. Board revoked his parole January 9, 1992. (R. 3, Notice of Board Order.) The parole eligibility date for the aggregate sentence was August 18, 2000. (R. 2.)

Muhammad was subsequently transferred to the jurisdiction of the United States Parole Commission ("Commission") 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 August 5, 1998); D.C. Code § 24-1231. This statute abolished the D.C. Board of Parole and transferred jurisdiction to make parole decisions for all D.C. Code offenders to the Commission.

The Commission provided Muhammad with an initial parole hearing on April 26, 2000. (R. 4-6, Initial Hearing Summary.) The Commission applied the amended and supplemented D.C. parole regulations, which are codified at 28 C.F.R. § 2.70 et seq.*fn3 Petitioner received a salient factor score of 6, and a total point score of 3, which indicates that parole should be denied at the initial hearing. 28 C.F.R. § 2.80(h). The hearing examiner recommended denial of parole and continue for a rehearing after the service of 60 months from his parole eligibility conviction. The stated reason for the departure from rehearing range was because Muhammad was deemed to be a more serious risk than indicated by his base point score.

Upon administrative review of the initial hearing summary, the Commission determined that in order to assess Muhammad's suitability for parole release, the Commission needed to obtain a copy of the official version, i.e. police report, of Petitioner's arrest on March 16, 1991 for the offenses of Assault on a Police Officer with a Dangerous Weapon and Possession with Intent to Distribute Cocaine and a copy of the disposition of the charges. (R. 7, Notice of Action.) In order to obtain the additional information, the Commission deferred the decision up to 90 days pending receipt of additional information. (Id.)

By notice of action dated November 30, 2000, the Commission ordered "remand for a hearing on the next available docket." (R. 8, Notice of Action.) The reason for this decision was "to consider information in the Washington, D.C. police department report dated March 16, 1991" to determine whether or not Petitioner was a more serious risk for release to the community. (Id.)

A reconsideration hearing was held on March 6, 2001. (R. 11-13, Reconsideration Hearing Summary.) Petitioner was questioned about the March 16, 1991 report and stated he had read the report and his comments indicate that he had indeed read the report. Again, the hearing examiner recommended that parole be denied, and that a rehearing occur in 60 months. The departure from the rehearing schedule of 12-18 months was warranted because Muhammad posed a more serious risk than indicated by his salient factor score. (Id.)

Petitioner alleges the Commission "violated its own regulation and statute by failing to provide petitioner copies of any adverse documents which it was to consider to make a parole determination prior to petitioner's initial hearing." (Doc. 1, p. 4.) Muhammad also asserts that the Commission violated his "statutory and regulatory rights to have his parole initial hearing tape recorded." (Id., p. 5.) Petitioner next contends that the Commission "impermissibly double counted petitioner's risk assessments, nature of charges, circumstances of the offenses, and seriousness, twice, when the sentencing court previously considered these factors at the time of petitioner's sentence." (Id., p. 7.) Lastly, Petitioner contends the Commission miscalculated his salient factor score and refused to rehear his case for adjustments. (Id., p. 9.)

Respondents contend that Petitioner incorrectly relies upon the parole statutes for federal inmates. Respondents assert that since Muhammad is a D.C. Code offender, the applicable law to his parole release is the D.C. parole statute, D.C. Code § 24-204; § 24-1231(c). Accordingly, Respondents argue that Petitioner, as a D.C. offender, has no right to procedures which are provided for solely in the federal parole statute, i.e. Petitioner's tape recording claim and copies of documents claim. Respondents also contend that it is settled law of the District of Columbia that the merits of a decision to grant or deny parole, or of the length of the "set-off" to the next parole hearing, are not judicially reviewable. E.g., Jones v. Braxton, 647 A.2d 1116 (D.C. App. 1994) (merits of decision to deny parole not judicially reviewable; claim that score miscalculated, or inaccurate information considered, goes to merits and is not reviewable); Brown-Bey v. Hyman, 649 A.2d 8 (D.C. App. 1994) (length of "set-off" to rehearing not judicially reviewable). Respondents further assert that the Commission correctly computed Muhammad's salient factor score. (Doc. 7, p. 6-9.)

II. Discussion

It is well settled that the determination of eligibility for parole has been committed by Congress to the discretion of the Commission. United States v. Addonizio, 442 U.S. 178 (1979); Campbell v. United States Parole Commission, 704 F.2d 106 (3d Cir. 1983). The 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 Revitalization Act and D.C. Code 24-209.*fn4 See 28 C.F.R. § 2.70. Therefore, the Commission has authority over Muhammad who is a D.C. offender. The guidelines for D.C. offenders are regulated by 28 C.F.R. § 2.80.

Because the Constitution itself does not create any liberty interest in parole, such an interest to prove a due process violation must emanate from state law, or in this case, District of Columbia law. See Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7 (1979). Courts have consistently held that the D.C. parole statute, which applies to D.C. Code offenders even after they are transferred to the jurisdiction of the Commission, does not create any liberty interest in parole. See, e.g., McRae v. Hyman, 667 A.2d 1356 (D.C. 1995) (The District's parole scheme confers discretion to grant or deny parole and the scoring system creates no liberty interest overriding the ...


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