UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JESSE ADAMS, : CIVIL NO. 4:06-CV-00386

:

Petitioner : (Judge McClure)

v. :

: (Magistrate Judge Smyser)

WARDEN RONNIE HOLT, :

:

Respondent :

REPORT AND RECOMMENDATION

On February 21, 2006, the petitioner, a federal prisoner

proceeding pro se, filed a petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2241. 

On March 6, 2006, the petitioner filed a motion for

summary judgment and a brief in support of that motion. 

After the petitioner paid the filing fee in this case, by

an order dated March 14, 2006, the respondent was ordered to show

cause on or before April 4, 2006 why the petitioner should not be

granted habeas corpus relief. The Order of March 14, 2006 also

provided that the petitioner may file a reply to the respondents’

response within ten days of the filing of the response. 

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On March 29, 2006, the respondents filed a brief in

opposition to the petitioner’s motion for summary judgment, and

after requesting and receiving an extension of time, the

respondents filed a response to the petition on April 10, 2006. 

The petitioner did not file a reply.

The petitioner pled guilty in the Superior Court of the

District of Columbia to attempted possession with intent to

distribute cocaine. Doc. 15, Exhibit 4. The petitioner was

sentenced to a six month term of imprisonment and a three year

term of supervised release. Id. The petitioner began service of

his supervised release term on April 1, 2003 and was to remain on

supervised release until March 31, 2006. Doc. 15, Exhibit 5. 

On March 1, 2004, the petitioner was arrested by the

District of Columbia Metropolitan Police for unauthorized use of a

vehicle, theft and receiving stolen property. See Doc. 15, Exhibit

6. The petitioner was released as to those charges on his

personal recognizance on March 11, 2004. Id. However, the

petitioner was thereupon held in the custody of the D.C.

Metropolitan Police Department on the basis of a fugitive warrant

from Prince George’s County, Maryland. Doc. 15, Exhibit 10 at ¶5

and Exhibit 7 at p.4.

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On March 31, 2004, the Parole Commission issued a warrant

charging the petitioner with violating the terms of his supervised

release by failing to submit to drug testing, using dangerous and

habit forming drugs, failing to report to his community

supervision officer, and committing violations of the law

(unauthorized use of a vehicle, theft and receiving stolen

property). Doc. 15, Exhibit 6. 

The petitioner was released by Prince George’s County

authorities, and on April 14, 2004, the petitioner was taken into

custody on the warrant issued by the Parole Commission. Doc. 15,

Exhibit 7 at p.4. A parole revocation hearing was held on May 27,

2004. Doc. 15, Exhibit 7. By a Notice of Action dated June 14,

2004, the Parole Commission revoked the petitioner’s supervised

release. Doc. 15, Exhibit 8. The Notice of Action provided that

the petitioner shall serve a new term of imprisonment of 21 months

and a new term of supervised release of 39 months following

release from custody. Id. 

With respect to the criminal charges filed against the

petitioner on the basis of the incident(s) leading to his arrest

on March 1, 2004, the petitioner pled guilty to unauthorized use

of a vehicle and first degree theft. Doc. 15, Exhibit 9. On June

16, 2005, the petitioner was sentenced by the District of Columbia

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Superior Court to 22 months imprisonment for unauthorized use of a

vehicle and a concurrent sentence of 22 months for first degree

theft. Id. Those sentences were ordered to run consecutive to

any other sentence of the petitioner. Id.

The Bureau of Prisons aggregated the petitioner’s 21 month

supervised release violation sentence and his 22 month sentence

for unauthorized use of a vehicle and first degree theft. Doc. 15,

Exhibit 10 at ¶5. The petitioner is currently serving that

aggregated 43 month sentence. Id. The petitioner’s sentence began

on April 14, 2004, the date that the Supervised Release Violation

Warrant was executed. Id. The petitioner received credit toward

his 43 month aggregate sentence for the time he was in custody

from March 1, 2004 through March 11, 2004. Id. The BOP calculates

the petitioner’s full term expiration date of his sentence to be

November 2, 2007 and his projected release date to be August 11,

2007. Id. 

The petition in this case is difficult to interpret. The

respondent construed the petition as raising two claims: 1) that

the BOP failed to give the petitioner credit toward his sentence

for the time he spent in custody in Prince George’s County,

Maryland on charges unrelated to his current sentence; and 2) that

regulations of the Parole Commission require that it grant the

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petitioner credit for the time he served on his new sentence. In

addition, by an Order dated May 26, 2006, we construed the

petition as raising three additional claims: 1) that the Parole

Commission denied the petitioner due process by incorrectly

calculating his salient factor score; 2) that the Parole

Commission denied the petitioner due process and violated its own

regulations by failing to hold a timely probable cause hearing

after the petitioner’s arrest; and 3) that the parole commission

violated the petitioner’s due process rights by revoking his

supervised release before the disposition of his new criminal

charges in the District of Columbia Superior Court. We ordered

the respondent to file a supplemental response to the petition

addressing the three additional claims set forth above. We also

indicated that the petitioner may file a reply within ten days

after the respondent files his supplemental response.

On June 12, 2006, the respondent filed a supplemental

response to the petition, and on June 15, 2006, the petitioner

filed a reply. 

The petitioner’s first claim is that the BOP failed to

give him credit toward his sentence for the time he spent in

custody in Prince George’s County, Maryland on charges unrelated

to his current sentence. 

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District of Columbia Code § 24-221.03(a) provides: 

(a) Every person shall be given credit on the

maximum and minimum term of imprisonment for time

spent in custody or on parole as a result of the

offense for which the sentence was imposed. When

entering the final order in any case, the court

shall provide that the person be given credit for

the time spent in custody or on parole as a result

of the offense for which sentence was imposed.

Since the time that the petitioner spent in custody in

Prince Georges County is not related to the offenses for which he

was sentenced, pursuant to D.C.Code § 24-221.03(a) the petitioner

is not entitled to credit toward his sentence for that time. 

Accordingly, it will be recommended that the habeas petition be

denied with respect to the claim that the BOP failed to properly

credit his sentence.

The remaining claims of the petitioner relate to actions

taken by the United States Parole Commission. The respondent

asserts that the petitioner failed to exhaust administrative

remedies with respect to those claims.

Although there is no statutory exhaustion requirement

applicable to habeas petitions brought pursuant to 28 U.S.C.

§ 2241, the courts have created a rule that prisoners are

ordinarily required to exhaust their administrative remedies

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before petitioning for a writ of habeas corpus pursuant to § 2241.

Moscato v. Federal Bureau of Prisons, 98 F.3d 757, 760 (3d Cir.

1996). The basic rationale for the exhaustion requirement is

that judicial review may be facilitated by the agency's

development of a factual record, that judicial time may be

conserved if the agency grants the relief sought, and that

administrative autonomy requires that an agency be given an

opportunity to correct its own errors. Arias v. United States

Parole Comm'n, 648 F.2d 196, 199 (3d Cir. 1981). However,

exhaustion of administrative remedies is not required where

administrative procedures are unavailable or incompetent to

provide adequate redress or where exhaustion would be futile.

Gonzalez v. Perrill, 919 F.2d 1, 2 (2d Cir. 1990); Gambino v.

Morris, 134 F.3d 156, 171 (3d Cir. 1998)(Roth, J.,

concurring)(exhaustion is not required when petitioner

demonstrates that exhaustion is futile).

The respondent asserts that the petitioner failed to

exhaustion administrative remedies because he did not

administratively appeal the decision to revoke his supervised

release pursuant to 28 C.F.R. § 2.220. The petitioner in his

reply does not assert that he administratively appealed the

decision to revoke his supervised release or otherwise exhausted

administrative remedies. Therefore, we conclude that the

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petitioner has failed to exhaust administrative remedies with

respect to his claims relating to the actions of the Parole

Commission. Accordingly, it will be recommended that those claims

be dismissed.

Based on the foregoing, it is recommended that the

petitioner’s claim that the BOP failed to properly credit his

sentence be denied and that the petitioner’s claims relating to

the actions of the Parole Commission be dismissed. It is further

recommended that the petitioner’s motion for summary judgment be

denied and that the case file be closed.

/s/ J. Andrew Smyser 

J. Andrew Smyser

Magistrate Judge

Dated: July 7, 2006.

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