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Jefferson v. Ebbert

September 15, 2010

DAVID JEFFERSON, PETITIONER
v.
WARDEN DAVID EBBERT, RESPONDENT



The opinion of the court was delivered by: Judge Rambo

MEMORANDUM

Before the court is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 filed by Petitioner David Jefferson ("Jefferson"), an inmate currently incarcerated at the Federal Correctional Institution at Allenwood ("FCI-Allenwood"), in White Deer, Pennsylvania. (Doc. 1.) Jefferson is challenging the actions taken by the United States Parole Commission ("USPC") in the context of his parole revocation hearing. For the reasons that follow, the petition will be denied in part and dismissed in part as moot.

I. Background

On May 7, 1981, the Superior Court of the District of Columbia sentenced Jefferson to a term of imprisonment of 31 years and 54 months for unauthorized use of a vehicle, receiving stolen property, and attempted armed robbery. (See Doc. 6-2, Ex. 1.) He was paroled from this sentence on March 23, 2006, to remain under supervision until his full term date of April 20, 2023. (Id., Ex. 2.)

In a report dated October 15, 2007, Jefferson's community supervision officer informed the USPC of Jefferson's non-compliance with the conditions of his parole, namely failure to obey all laws, illegal use of controlled substances, and failure to report as directed. (Id., Ex. 4.) In response, the USPC issued a warrant charging Jefferson with violating the conditions of his parole. (Id., Exs. 5, 6.)

Jefferson was arrested on the USPC's warrant on August 20, 2008. (Id., Ex. 6.) On September 24, 2008, the USPC supplemented the warrant with an additional charge of "Law Violation: a) Possession of Crack Cocaine, b) Assault, c) Destruction of Property, d) Unlawful Entry." (Id., Ex. 7.) The details of that charge, as described by the USPC, are as follows:

On 8-16-08, DC Metropolitan Police Officers observed the releasee drop something from his right hand, which later turned out to be a clear ziplock containing one red zip and one green zip. Inside the larger clear zip was three loose white rocks and white powder in the red and green zip. In attempt to flee the scene, the releasee shoved one of the officers down on the ground causing a deep laceration to his right hand. The releasee then ran to the front of a residence and kicked in the front door [of] the owner's home in [an] attempt[ ] to barricade himself inside the home. The victims did not know the releasee. The releasee was arrested by the DC Metropolitan Police Department for the above-cited offense on 8-16-08. This charge is based on the information contained in the police report dated 8-16-08. Status of Custody/Criminal Proceedings: The releasee is scheduled to return to court on October 2, 2008. (Id., Ex. 7.)*fn1

The USPC conducted a revocation hearing on October 23, 2008.*fn2 (Id., Ex. 8.) Jefferson appeared at the hearing with appointed counsel. (Id.) A Community Supervision Officer ("CSO") also appeared, with the file on Jefferson maintained by the Court Services and Offender Supervision Agency ("CSOSA").*fn3 (Id.) In addition, Metropolitan Police Department ("MPD") Officer Marcus Smith appeared. (Id.) MPD Sergeant Ernest Grant, the officer allegedly assaulted by Jefferson, did not appear, despite being subpoenaed. (Id.) Further, Barbara Oliver, the owner of the house Jefferson allegedly broke into, appeared as a fact witness. (Id.)

At the hearing, the USPC examiner considered all the charges. The hearing summary indicates the following with respect to the charges of assault, destruction of property, and unlawful entry.*fn4 The examiner called Officer Smith, who testified that he received a radio call for an assault on a police officer, and upon arriving at the 5000 block of Drake Place, SE, Washington, D.C., he observed Jefferson, who matched the physical and clothing description from the radio call, running from the direction where the assault had just occurred. (Id., Ex. 8 at 3.) Officer Smith exited his vehicle and Jefferson was running straight towards him. (Id.) Officer Smith yelled, "Stop, police," but Jefferson did not stop; rather, he ran to the front door of a residence on Drake Street and kicked in the door. (Id.) Officer Smith observed Jefferson kick in the door from approximately five feet behind him. (Id.) Jefferson closed the door on Officer Smith, and Smith had to force his way in. (Id.) As he was attempting to enter the residence, he heard a woman screaming for Jefferson to get out of the home. (Id.) Officer Smith was able to force his way into the residence, and after a brief struggle with Jefferson, he arrested him. (Id.)

The examiner questioned Officer Smith about his knowledge of the assault of Sergeant Grant. (Id.) He testified that he did not witness the assault, but was called to the scene immediately after it occurred. (Id.) In fact, he arrived at the scene within one minute of the radio call and observed Jefferson running from the scene. (Id.) He further testified that when he was holding Jefferson at the scene of arrest, Sergeant Grant arrived for a "show up," and positively identified Jefferson as the person who had assaulted him. (Id.) In addition, Officer Smith personally observed the laceration on the palm of Sergeant Grant's hand, noting that it was a "fairly deep cut." (Id.) Sergeant Grant was treated on the scene inside an ambulance, and the laceration required stitches. (Id.)

The examiner also questioned Barbara Oliver, the resident at the home Jefferson allegedly broke into. (Doc. 6-2, Ex. 8 at 4.) Oliver testified that she knew of Jefferson as "Percy," and that he does yard work for her. (Id.) On the morning of the incident, she observed him doing yard work on the block, and then went inside her residence to use the bathroom. (Id.) While in the bathroom, she heard a commotion and came out to find Jefferson and a police officer in her home. (Id.) She observed that they had caused property damage, including broken furniture and damaged trim to the front door. (Id.) She then screamed for everyone to exit her residence, including the police. (Id.) She testified that she did not personally observe who had kicked in her door, but that Officer Smith told her that police had to kick in the door to get to Jefferson. (Id.)

After hearing this testimony, as well as cross-examination by Jefferson's counsel, the examiner found that Jefferson had violated the conditions of his release with respect to the charges of assault, unlawful entry, and destruction of property. (Doc. 6-2, Ex. 8 at 5.) The examiner acknowledged that his decision on the assault was based on Officer Smith's hearsay testimony, but, nevertheless, the evidence "ha[d] sufficient indicia of reliability to consider it," and thus, the testimony of... Sergeant Grant is not necessary." (Id.) The examiner also credited Officer Smith's testimony with respect to the finding related to unlawful entry and destruction of property. (Id.)

The examiner rated the severity of the parole violation as Category Six severity offense because it involved Assault on a Police Officer with Bodily Injury. (Id., Ex. 8 at 6.) See also 28 C.F.R. §§ 2.20, 2.21(b). Combined with a salient factor score of 2 points, the guideline range became 78-100 months to be served prior to reparole. (Doc. 6-2, Ex. 8 at 6.) Further, because Jefferson was found guilty of assaulting another inmate while in a prison facility awaiting his parole revocation hearing, the USPC was required to add an additional 0-10 months to the guideline range, resulting in an aggregate guideline range of 78-110 months. (Id.) Under these guidelines, the examiner recommended that parole be revoked; that none of the time spent on parole be credited; that time spent in custody on a previous warrant from March 1, 2007 to July 19, 2007 be credited towards the service of the maximum term; and that Jefferson continue to a presumptive parole on October 19, 2017, after service of 110 months. (Doc. 6-2, Ex. 8 at 7.) On November 17, 2008, the USPC adopted the examiner's recommendation, and revoked his parole under those conditions. (Doc. 6-2, Ex. 9.) On December 10, 2009, the National Appeals Board affirmed the USPC's decision on administrative appeal. (Doc. 6-2, Ex. 10.)

By notice dated June 28, 2010, the USPC reopened Jefferson's case. (Doc. 6-2, Ex. 11.) Specifically, the USPC ordered the following:

Schedule for a rehearing on the next available docket. At the rehearing, the Commission will apply the 1987 guidelines of the District of Columbia Board of Parole to calculate a total point score and determine whether reparole is warranted.

In addition, the Commission vacates the finding of fact on Charge 4(b) of the warrant supplement dated September 24, 2008 (Assault). The Commission will not consider this charge (Assault) in determining your total point score. (Id.)

Prior to the reopening of his case by the USPC, Jefferson filed his habeas petition on May 20, 2010. (Doc. 1.) In the petition, Jefferson claims that the USPC violated his right to due process as well as violated the Ex Post Facto Clause of the United States Constitution when it revoked his parole. On June 11, 2010, the court issued an order directing Respondent to show cause within twenty days why Jefferson should not be granted habeas relief. (See Doc. 4.) Respondent answered the petition on July 1, 2010, (Doc. 6), and Jefferson replied on July 14, 2010, (Doc. 7). Thus, the petition is now ripe for disposition.

II. Discussion

A petition for writ of habeas corpus under § 2241 is the proper vehicle for relief "where petitioner challenges the effect of events 'subsequent' to his sentence," Gomori v. Arnold, 533 F.2d 871, 874 (3d Cir. 1976), and where he challenges the execution of his sentence rather than its validity, see Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir. 2001). Jefferson is challenging the execution of his sentence in that he seeks review of the process by which the USPC ...


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