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Wayne Lee v. Isaac Fulwood

April 28, 2011

WAYNE LEE, PETITIONER,
v.
ISAAC FULWOOD, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Yohn, J.

Memorandum

Petitioner Wayne Lee brings this action for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, claiming that the United States Parole Commission (the "Commission") violated his constitutional due process rights by failing to provide him with a probable cause hearing before revoking his parole and keeping him in custody beyond his original sentence. For the foregoing reasons, I will deny Lee's petition.*fn1

I. Factual and Procedural History

On January 4, 1996, the Superior Court of the District of Columbia sentenced Lee to a nine-year term for theft I. (Gov't's Resp. to 2241 Pet. 1, Ex. 1 "Judgment and Commitment Order.") Lee was first paroled on February 10, 1999, by the former District of Columbia Board of Parole (the "D.C. Board"), with 2,069 days remaining in his sentence. (Id., Ex. 2 "Parole Certificate.") The D.C. Board issued a parole-violator warrant for his arrest on October 13, 1999. (Id., Ex. 3 "Violator Warrant.") He was arrested on December 6, 1999, and his parole was revoked on April 5, 2000. (Id., Ex. 3 & Ex. 4.)

Lee was then paroled by the Commission*fn2 on February 9, 2001, with 1,636 days remaining in his sentence. (Id., Ex. 5 "Parole Certificate.") The Commission issued a parole-violator warrant on November 1, 2004, for failing to submit to drug testing, using cocaine, and failing to report to his supervision officer. (Id., Ex. 6 "Warrant Application.") Lee was arrested on the warrant on January 13, 2005, and the Commission revoked his parole on April 4, 2005. (Id., Ex. 7 "Return on Warrant" & Ex. 8 "Notice of Action.")

Lee was paroled for a third time on September 12, 2005, with 1,384 days remaining in his sentence. (Id., Ex. 9 "Parole Certificate.") The Commission issued a parole-violator warrant on May 19, 2006, for violating the drug-aftercare condition as well as failing to submit to drug testing, using cocaine, and failing to report to his supervision officer. (Id., Ex. 10 "Warrant Application.") Lee was arrested on the warrant on May 22, 2006. (Id., Ex. 11 "Return on Warrant.") He agreed to proceed without a revocation hearing, and the Commission revoked his parole on June 20, 2006. (Id., Ex. 12.)

Lee was paroled for a fourth time on May 21, 2007, with 1,016 days remaining in his sentence. (Id. at 3, Ex. 13 "Parole Certificate.") On April 25, 2008, the Commission issued another parole-violator warrant as a detainer, charging Lee with failing to report to his supervision officer and burglary I. (Id., Ex. 14 "Warrant Application.") Lee was convicted of unlawful entry and theft II in the Superior Court of the District of Columbia on May 6, 2009, and was sentenced to two consecutive terms of incarceration of six months and 540 days, imposed nunc pro tunc from April 30, 2009. (Id., Ex. 16 "Judgment.") Lee was then arrested on the parole-violator warrant on April 14, 2010. (Id., Ex. 17 "Return on Warrant.") The Commission issued a supplemental warrant on July 7, 2010, to add the information regarding his new convictions. (Id., Ex. 18 "Supplemental Warrant Application.")

The Commission notified Lee by a letter dated July 8, 2010, that there was probable cause to believe that he had violated his parole and that a revocation hearing had been ordered. (Id., Ex. 20 "Letter to Lee dated July 8, 2010.") On September 1, 2010, the Commission sent Lee's attorney an offer of a disposition without a revocation hearing. (Id., Ex. 21 "Expedited Offer.") The offer proposed that Lee's parole be revoked, time spent on parole be forfeited, and that his sentence "continue until expiration," so that he remain incarcerated without parole until the expiration of his sentence. Lee did not accept the proposed decision. Then, on September 21, 2010, the Commission attempted to conduct a hearing but it was continued at Lee's request. (Id. at 2, Ex. 22.)

Lee finally received a revocation hearing on November 5, 2010. (Id. at 4, Ex. 23 "Hearing Summary.") The hearing examiner concluded that the severity rating for Lee's conduct was a category two, which results in a reparole guideline range of sixteen to twenty-two months. (Id., Ex. 23 at 3.) The examiner noted that going beyond the guideline maximum was warranted because Lee was in absconder status when he committed the law violations. (Id., Ex. 23 at 3.) The examiner therefore decided that reparole should be effective after service of thirty-six months. The hearing examiner observed that as of October 23, 2010, Lee has been continuously incarcerated for thirty months, which the examiner credited toward the guideline range. (Id., Ex. 23 at 3.) The examiner therefore recommended that Lee's parole be revoked, the time he spent on parole be forfeited, and his reparole date be set for April 11, 2011. (Id., Ex. 23 at 3-4.)

The executive reviewer disagreed with the hearing examiner's assessment of Lee's severity rating and reparole date and rejected his recommendation on December 6, 2010. (Id., Ex. 23 at 4.) The executive reviewer concluded that the severity rating was a category five, which results in a sixty to seventy-two month guideline range. (Id., Ex. 23 at 5.) Lee had 1,016 days remaining in his sentence when he was arrested on his latest parole warrant on April 14, 2010, so his mandatory release date was calculated to be January 23, 2013. (Id., Ex. 23 at 1.) The guideline range exceeded the amount of time left remaining in Lee's original nine-year sentence. Because Lee's mandatory release date required him to serve only approximately fifty-seven months toward the guideline, the executive reviewer recommended that Lee's sentence be continued to expiration. (Id., Ex. 23 at 5.)

The Commission adopted the executive reviewer's recommendations. (Id., Ex. 24 "Orders.") Lee received a notice of action dated December 8, 2010, informing him of the parole revocation and of his right to appeal the decision to the Parole Commission within thirty days of the notice. (Id., Ex. 25 "Notice of Action.")

Lee filed the instant habeas petition on October 15, 2010, before the final revocation hearing even took place and before the final revocation notice was ultimately issued.*fn3

Respondents submitted their response to the habeas petition on ...


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