The opinion of the court was delivered by: Judge Vanaskie
Anthony Burgess petitions pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 challenging the decision of the United States Parole Commission ("Commission") to revoke his parole. (Dkt. Entry 1.) The Commission concluded that Mr. Burgess violated the conditions of his parole when he raped and sexually assaulted a female victim on January 2, 2005. Mr. Burgess, an inmate at FCI-Schuylkill, asserts several grounds in support of his petition. For the reasons that follow, Mr. Burgess's petition will be denied.
On September 8, 1992, the Superior Court of the District of Columbia sentenced Mr. Burgess to a prison term of four (4) to twelve (12) years following his guilty plea to distributing cocaine. (Judgment & Commitment Order, Ex. 1 to Gov't's Resp. to Pet., Dkt. Entry 13-2.) Mr. Burgess was paroled twice in relation to this sentence, but each attempt to restore him to society proved unsuccessful as his parole was revoked for unspecified violations. On December 11, 2003, Mr. Burgess was paroled a third time by the Commission, effective December 16, 2003, and he was to remain under supervision until June 16, 2010.*fn1 (Certificate of Parole, Ex. 2 to Gov't's Resp. to Pet., Dkt. Entry 13-2, at 1.) The Commission imposed several conditions on Mr. Burgess's release, including that he was not to violate any law, and he was not to purchase, possess, or use marijuana or "other habit-forming or dangerous drugs." (Id. at 2.)
On February 28, 2005, the Commission received a "Request for Parole Violator Warrant" from a probation officer in the Southern District of New York, where Mr. Burgess resided. (Ex. 3 to Gov't's Resp. to Pet., Dkt. Entry 13-2.) The probation officer reported her opinion that Mr. Burgess had violated several conditions of his parole. Mr. Burgess had used marijuana on at least two occasions, and he was arrested on February 5, 2005 on a charge of possession of marijuana in the fifth degree. (Id. at 1.)
More serious, however, was the probation officer's report that, on January 2, 2005, Mr. Burgess allegedly committed a rape. (Id.) According to the criminal complaint and police reports appended to the warrant request, Mr. Burgess went to Renee Tyson's apartment building to exchange property. (Id. at 9.) Ms. Tyson allowed him into her apartment where he followed her into the bedroom, threw her onto her bed, and forcibly removed her sweat pants. (Id.) He then allegedly performed oral sex on Ms. Tyson and then raped her. (Id.) After Mr. Burgess departed, Ms. Tyson called the police and was eventually transported to a hospital. (Id. at 9-10.)
Mr. Burgess was arrested on February 5, 2005, and charged with the two sexual offenses. (Id. at 2.) A grand jury was convened to consider the charges against Mr. Burgess and heard testimony from Ms. Tyson and Mr. Burgess. (Letter from Michael D. Horn to Christy Younger, June 10, 2005 ("Horn Letter"), Ex. to Pet'r's Traverse to Gov't's Resp., Dkt. Entry 14.) The grand jury failed to a return an indictment and, on February 10, 2005, the charges against Mr. Burgess were dismissed. (Id.)
Although Mr. Burgess was not criminally prosecuted for the assault and rape of Ms. Tyson, he did face a parole revocation hearing. The probation officer contacted Ms. Tyson, who indicated a willingness to testify against Mr. Burgess. (Request for Parole Violator Warrant 2.) Ms. Tyson also confirmed the events recounted in the criminal complaint and provided a written statement to the probation officer. (Id.; see also Statement of Renee Tyson, Mar. 11, 2005 ("Tyson Statement"), Ex. to Pet'r's Traverse to Gov't's Resp., Dkt. Entry 14.)
The Commission issued a warrant for Mr. Burgess's arrest on March 7, 2005. (Ex. 5 to Gov't's Resp. to Pet., Dkt. Entry 13-2.) The warrant charged Mr. Burgess with three violations of the conditions of his parole. The first charge arose from the rape and criminal sexual act offenses ("the sexual offenses charge"), and charges two and three pertained to the marijuana use and criminal possession of marijuana, respectively. (Id. at 1-2.) On March 23, 2005, Mr. Burgess was arrested during a visit with his probation officer. (Preliminary Interview Report, Ex. 6 to Gov't's Resp. to Pet., Dkt. Entry 13-2, at 1.)
A preliminary interview was held on March 30, 2005, at a Brooklyn detention center. Mr. Burgess was furnished with a copy of the warrant, and the interviewing officer explained the charges and advised Mr. Burgess of his right to counsel and his right to request the presence of "friendly or adverse witnesses" during the interview. (Id.) Mr. Burgess refused to cooperate during the interview and would not sign necessary documents concerning appointment of counsel or comment on the charges. (Id. at 1-2.) Nevertheless, the interviewing officer found probable cause on each charge. (Id.; see also Hr'g Summ., June 13, 2005 ("June Hr'g Summ."), Ex. 7 to Gov't's Resp. to Pet., Dkt. Entry 13-2, at 1 (noting the Commission's concurrence in this recommendation).)
On June 13, 2005, a revocation hearing was held in Philadelphia. Mr. Burgess was represented by an attorney. (June Hr'g Summ. 1.) The hearing examiner declined to proceed on the sexual offenses charge. Mr. Burgess's recalcitrance at the preliminary interview caused uncertainty over whether he had waived his right to counsel at the preliminary interview or to confront and cross-examine adverse witnesses at a local hearing. (Id. at 1-2.) The hearing examiner decided to continue the hearing as to the sexual offenses charge in order to resolve the waiver issue.*fn2 (Id. at 2.)
The Commission undertook a review of this issue and decided to afford Mr. Burgess an opportunity to request an attorney and to confront and cross-examine adverse witnesses. (Hr'g Summ., Feb. 17, 2006 ("Feb. Hr'g Summ."), Ex. 10 to Gov't's Resp. to Pet., Dkt. Entry 13-2, at 1.) Mr. Burgess submitted the appropriate paperwork and requested a local hearing. (Ex. 9 to Gov't Resp. to Pet., Dkt. Entry 13-2.) The Commission scheduled a hearing in Brooklyn for February 17, 2006.
At the outset of the February 17 hearing, the hearing examiner explained the rules of the administrative proceeding, including the standard of proof, and confirmed Mr. Burgess's understanding of his rights and that he had sufficient time to prepare with his attorney. (Hr'g Tr., Feb. 17, 2006, Ex. to Pet'r's Traverse to Gov't's Resp., Dkt. Entry 14, at 4-7.) The examiner then heard testimony from three witnesses: Mr. Burgess, Ms. Tyson, and Richard Perez, a detective with the Queens special victims squad of the New York City Police Department, who investigated Ms. Tyson's complaint.
Mr. Burgess denied the sexual offenses charge. (Id. at 10.) He explained that he went to Ms. Tyson's apartment on January 2 to exchange property and keys, and she invited him upstairs. (Id. at 12.) Mr. Burgess admitted that he performed oral sex on Ms. Tyson and had sexual intercourse with her, but insisted it was consensual. (Id. at 13-14.)
Ms. Tyson testified that she met Mr. Burgess outside her building to return each other's property. They went upstairs to her apartment because she forgot some of Mr. Burgess's items. (Id. at 25.) She testified that Mr. Burgess followed her into her bedroom and raped her, but she initially denied that Mr. Burgess committed any other sexual acts. (Id. at 25-27.) After the attack, Ms. Tyson was transported to a hospital, where she was examined by a doctor. (Id. at 29.) Ms. Tyson did not recall the results of the examination, which included a rape test. (Id. at 29-30.) The hearing examiner questioned Ms. Tyson about her March 11, 2005 statement to the probation officer, which indicated that Mr. Burgess performed oral sex in addition to raping her. (Id. at 30; see also Tyson Statement 2.) Ms. Tyson responded that the statement was accurate, and that she misunderstood the hearing examiner's earlier question. (Hr'g Tr. 30-31.)
After the hearing examiner's questioning, Ms. Tyson was cross examined by Mr. Burgess's attorney. The attorney challenged her story and explored possible motives to fabricate the allegations against Mr. Burgess. (See id. at 36-37, 45-47, 49-51.) Towards the end of the cross-examination, Mr. Burgess's attorney attempted to question Ms. Tyson about her mental health history. (Id. at 51.) The hearing examiner did not allow ...