The opinion of the court was delivered by: Judge Munley
Before the court is the petitioner's objection to Magistrate Judge Thomas M. Blewitt's recommendation that the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 be denied. Having been fully briefed, the matter is ripe for disposition.
On February 12, 1999, the Petitioner Darren McIntyre ("Petitioner") was sentenced by the District of Columbia Superior Court to a thirty-year term of imprisonment for aggravated assault. (Doc. 11-2, Ex. 1). This sentence was imposed to run consecutively to an earlier 1996 nonparolable federal sentence of fifty-seven months for unlawful possession of a firearm by a convicted felon. (Doc. 11-2, Ex. 1 at 3). On January 1, 2010, the Petitioner became eligible for parole on his D.C. sentence. (Doc. 11-2, Ex. 1 at 2).
On October 28, 2009, the United States Parole Commission ("USPC" or "Commission") conducted an initial parole hearing for the Petitioner in anticipation of his upcoming eligibility for release. (Doc. 11-2, Exs. 2, 3). The hearing examiner informed the Petitioner that he would recommend the Petitioner's case be continued until the Commission could obtain a copy of the Petitioner's offense report. (Id.) According to the hearing summary, the hearing examiner was able to obtain the police report and Grand Jury Indictment for the Petitioner's assault conviction. (Doc. 11-2, Exs. 3-5).
The hearing examiner summarized the facts surrounding the Petitioner's conviction in the hearing summary. (Doc. 11-2, Ex. 3). The hearing examiner noted that the Petitioner is a reputed member of the Stanton Terrace Crew, a rival of the Parkland Crew. (Id.) The hearing examiner stated that the Petitioner's indictment indicates that between March 20, 1995 and December 13, 1995, members of the Stanton Terrace Crew, including the Petitioner, conspired to murder members of the Parkland Crew, who were viewed as competitor crack cocaine dealers, in order to seek revenge for the killing of a former member of the Stanton Terrace Crew. (Doc. 11-2, Exs. 3, 5).
The two crews were involved in a feud and police responded to shootings on three separate occasions. (Doc. 11-2, Ex. 3-5). On May 11, 1995, members of the Stanton Terrace Crew, including the Petitioner, went to the Savannah Terrace to murder James Dawkins, an associate of the Parkland Crew. (Id.) This shooting resulted in three bystanders, two women and a four year old child, being shot and wounded. (Id.) On May 13, 1995, members of the Stanton Terrace Crew shot and killed William Zimmerman, a member of the Parkland Crew. (Id.) On May 14, 1995, members of the Stanton Terrace Crew shot and killed Michael Thompson during an attempt to kill members and associates of the Parkland Crew. (Id.)
The Petitioner was indicted on twelve counts and subsequently pled guilty to three counts of Aggravated Assault. (Doc. 11-2, Ex. 3 at 4-5). According to the hearing examiner, during the hearing on October 28, 2009 the Petitioner admitted his involvement in the May 11, 1995 shooting, stating only that three people were shot and that no one was killed. (Doc. 11-2, Ex. 3 at 5-6). The hearing examiner noted that the Petitioner's statements at the parole hearing were different from the information in the official version of events. (Doc. 11-2, Ex. 3 at 5-6). On December 14, 2009, the Petitioner was informed that his case was remanded for a new hearing to consider information contained in the police report dated March 23, 1998 and the Grand Jury indictment. (Doc. 11-2, Exs. 4, 5).
The second hearing was conducted by Hearing Examiner Joseph Pacholski ("Pacholski") on January 28, 2010. (Doc. 11-2, Ex. 7). According to Pacholski's hearing summary the Petitioner admitted he was present for the two murders alleged in the indictment, and for the shooting of the two women and child. (Id.) According to Pacholski's summary of the prisoner's statement, "[t]he subject indicated that he was present for the Murders and he was there for the shooting of the two females and the 4 year old child. . . . The subject agreed that the information supplied at the [initial] hearing was accurate for the questions that were asked but he is further identifying that he was present when these things occurred but he was not an active participant. It was only because of the conspiracy did he become an active participant [sic]." (Id. at 1). In evaluating the Petitioner, Pacholski concluded that, "[d]ue to the subject's own admission of being present at the time of the shooting of the child and the two women this examiner coupled with the murders from before [sic] believes that the subject needs a victim course to be ready for parole." (Id. at 2). Pacholski recommended that parole be denied. (Id.)
The Executive Reviewer, S. Husk, concurred with Hearing Examiner Pacholski. The executive reviewer commented that, although the Petitioner presented a sentencing transcript indicating that Petitioner was not alleged to have been present at the two murders, Pacholski had indicated that Petitioner admitted his presence at the murders to him. The Executive Reviewer stated "I believe there is sufficient evidence to conclude that the instant offense involved exceptional cruelty to the victims and reflects ongoing criminal behavior. Specifically, on 5/11/95, McIntyre participated in a shooting in which there were innocent bystanders that were struck with bullets including a four year old boy. Furthermore, the purpose of the shooting was to kill a rival crew member. McIntyre also admitted to being present during two other shootings that resulted in the death of the victims. Those murders were also carried out in furtherance of the illegal activity of the Stanton Street Crew." (Id. at 4).
In its March 13, 2010 Notice of Action denying Petitioner parole, the Commission provided its statement of reasons for departing from the guidelines. (Doc. 11-2, Ex. 8). The Commission's statement of reasons incorporates the executive reviewer's comments, verbatim. The Commission's statement of reasons is as follows:
The Commission has applied the D.C. Board of Parole's 1987 guidelines to the initial parole decision in your case. You have a total point score of 2 under the guidelines for D.C. Code offenders. The guidelines indicate that parole should be granted at this time. However a departure from the guidelines at this consideration is found warranted because the Commission finds there is a reasonable probability that you would not obey the law if released and that your release would endanger the public. You are a more serious parole risk than shown by your point score because your offense conduct involved ongoing criminal behavior involving violence, drug distribution and possession of weapons. Specifically, you were a member of the Stanton Street Crew engaging in drug distribution activities and were present during three shootings that were carried out in furtherance of the illegal activities of the Crew. Specifically you were involved in a shooting on 5/11/95 wherein a member of a rival Crew was the intended victim but, in fact, three innocent victims were struck including an especially vulnerable victim (a four year old child). Within a few days of that shooting you were present when two other men were murdered also in furtherance of the illegal activities of the Stanton Street Crew. You were involved in drug distribution activities for nearly 3 years prior to these shootings and the intent of the Stanton Street Crew was to eliminate rival crew members specifically members of the Parkland Crew. The extent of your ongoing criminal activity is evidenced by material recovered from your residence at the time of your arrest in December of 1995 which included a sawed-off shotgun, ammunition of various calibers, two digital scales and a handwritten diary describing several violent crimes. In addition, a videotape was recovered dated January of 1994 wherein you were demonstrating how to use a sawed off shotgun and your 4 year old son was seen mimicking use of a gun. The Commission believes all of this evidence of your ongoing commitment to a violent criminal lifestyle while in the community. The Commission recognizes the positive prison adjustment that you have made. However, your ongoing criminal behavior in the community that included participating in shootings that furthered your drug distribution activities indicate to the Commission that you remain a risk to release on parole at this time. (Id.) The decision of the Commission was not administratively appealable. (Id.) By way of a April 30, 2010 letter, Petitioner requested that the Commission reopen his case, however the Commission determined that reopening was not warranted. (Doc. 11-2, Exs. 9, 10).
On August 19, 2010, the Petitioner filed his petition for a writ of habeas corpus, pro se, challenging the Commission's departure from the guidelines for District of Columbia offenders. (Doc. 1). On September 30, 2010, Respondent Warden Ebbert filed his response. (Doc. 11-2). Magistrate Judge Thomas M. Blewitt filed a report and recommendation on December 22, 2010. Petitioner filed his objections to the report and recommendation on January 10, 2011. (Doc. 15). On February 23, 2011 the court ordered and received an audio recording of Petitioner's January 28, 2010 remand hearing before Hearing Examiner Pacholski. Upon the court's review of this recording, the matter is now ripe for disposition.
Because this case is brought under 28 U.S.C. §§ 2241 ("Section 2241"), the court has jurisdiction pursuant to 28 U.S.C. § 1331. ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."). Section 2241 "confers jurisdiction on district courts to issue writs of habeas corpus in response to a petition from a state or federal prisoner who 'is in custody in violation of the Constitution or laws or treaties of the United States.'" Coady v. Vaughn, 251 F.3d 480, 484 (3d Cir. 2001). The federal habeas statute also requires that the petitioner be in custody "under the conviction or sentence under attack at the time his petition is filed." Lee v. Stickman, 357 F.3d 338, 342 (3d Cir. 2004) (quoting Maleng v. Cook, 490 U.S. 488, 490-91 (1989)).
Section 2241, unlike other federal habeas statutes, "confers habeas jurisdiction to hear the petition of a federal prisoner who is challenging not the validity but the execution of his sentence." Coady, 251 F.3d at 485. (quoting 28 U.S.C. §§ 2241(a) and (c)(3)). Although the Third Circuit Court of Appeals has yet to clearly define the meaning of "execution" in this context, it has cited approvingly holdings from other circuits finding that a Section 2241 motion properly challenges "'such matters as the administration of parole, computation of a prisoner's sentence by prison officials, prison disciplinary actions, prison transfers, type ...