UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

____________________________________) BILL Y BROWN, ) ) P etitioner , ) ) v. ) Civil Action No. 10-0546 (ESH) ) U.S. P AROLE COMMISSION, ) ) Respondent. ) ____________________________________)

MEMORAN DUM OP INION This matter is befor e the Court on B illy Br own’s petition for a

writ of habe as cor

pus and the g overnme nt’s response s to the April 8, 2010 order to show cause . For

the re asons discussed below, the pe tition wil l be denied. I. BACKG ROUND On J anuar

y 18, 1983, in the Superior Court of the D istrict of Columbia, petitioner was sentenc ed to a ter

m of 20 months to five y ear s’ imprisonment on his conviction for burg lary , and this sentence w as to be ser ved conse cutively

to a term of f

our to 12 year s’ imprisonment for attempted robbe ry . U.S. Parole Commissi on’s Opposition to P etitioner’s Pro Se Petition for a Writ of Habea s Corpus (“USPC Opp’n”), E x . 1-2 (Judgment a nd Commi tment Order s, Case Nos. F- 257-82 and F -4475-82) . Acc ordingto the USPC , petitioner esc aped in Oc tober 1991, wa s returne d to custody

upon his arre st on drugchar g es, wa s sentence d on May 22, 1992, in the Superior Court to a ter

m of four months to one and one -half year s’ imprisonment for the pr ison brea ch and w as sentenc ed on De cembe r 22, 1992, to a maximum term of 12 year s’ imprisonmenton the drugchar g es. USPC Opp’n at 2. These sentenc es we re to be serve d consec utively to those imposed in 1983. Id. The for mer District of Columbia B oard of Parole (“ Parole B oard” ) re lease d petitioner on parole on Marc h 9, 1998. USPC Opp’n, Ex. 3 (Certificate of Parole) . As of that date , petitioner was to re main under pa

role super vision through Oc tober 2, 2010. Id. Petitioner appar ently committed an ar

med robbe ry , which prompted the Parole B oard to re voke his parole and to g rant repa role immediately

. Id. , Ex . 4 (Notice of B oard O rder dated Oc tober 28, 1998). U pon petitioner’s a

rre st for ar

med robbe ry

and other offe nses on Octobe r 30, 1998, id. , Ex . 5 (Warra nt) at 1, the Parole Boa

rd issued a de tainer w arr ant on Novembe r 2, 1998. Id. (Notice of B oard Orde r date d November

2, 1998). Petitioner was c onvicted of the robber y and on January

22, 1999, he wa s sentence d to a maxim um term of ter m of 16 to 48 months’ imprisonm ent. Id. , Ex

. 1 (Judgment and Commitment Order, Case No. F- 7875-98). By the time petitioner bec ame e ligible f or par ole with respe ct to the 1999 robbe ry conviction, the Parole Boa rd had be en abolished a

nd the USPC had assumed authority over District of Columbia Code offe nders. SeeD.C. Code § 24-131. Petitioner’s par ole hea ringtook 1 place on November

27, 2000. USPC Opp’n, Ex. 6 (Hea ringSummary

) at 1. The USPC denied parole and continued the matter for a re hear ing in F ebrua

ry 2002. Id. , Ex . 9 (Notice of Ac tion dated De cembe r 19, 2000). The USPC also denied pa role at its nex t considera

tion, id. , Ex . 9 (Notice of Ac tion dated J anuar y 18, 2002) at 1, a

nd continued the matter

to the expiration of the sentenc e. Id. Be cause the forme r Parole B oard’ s detainer war rant re mained in ef

fec t, when

“The [US PC] shall exercise a uthority over D istrict of Columbia Code offende rs pursuant 1 to section 11231 of the Na tional Capital Revitaliz ation and Self-G overnme nt Improvement Ac t of 1997, Public L aw 105- 33, 111 Stat. 712[ .]” 28 C.F.R. § 2.70(a). 2petitioner re ache d his mandatory rele ase date, the USPC ex ecute d the war rant a nd, afte r a he aring on J anuar y 29, 2003, id. , Ex . 10 (Revocation Hear ing Summary ), it revoke d parole

. Id. , Ex . 11 (Notice of Ac tion dated Fe bruar y 25, 2003) at 1. The USPC set a pre sumptive parole date of October 30, 2005, id. , which wa s delayed an a dditional 30 day s beca use petitioner ha d violated the rules of

the fa cility

wher e he w as then inca

rce rate d. Id. , Ex . 12 (Notice of Ac tion dated Marc h 25, 2005). Afte r petitioner c ommitt ed a dr ug -re lated infra ction of the institution’s rules, the USPC further dela

y ed his rele ase date, to J uly 29, 2006. Id. , Ex . 13 (Notice of Ac tion dated May 19, 2006). As of July

29, 2006, petitioner wa s to remain under parole supervision throug h J anuar y 22, 2019. Id. , Ex . 14 (Parole Ce rtificate ) at 1. Petitioner was ar

rested f or possession of drugpara pherna lia on August 23, 2006, and was rele ased the next day . USPC Opp’n, Ex. 15 (Hea ringSummary) at 1. He was a rre sted on October 2, 2006, for a ssault with a dang erous we apon. Id. , Ex . 15 at 2-3 & Ex . 16 (Notice of Action dated Ma

rch 12, 2007) at 1-2. Af

ter a hear ing on F ebrua

ry 15, 2007, the USPC revoked parole upon its findings that petitioner ha d used controlled substanc es and a lcohol, possessed drugpara pherna lia, possessed a pr ohibited weapon ( knife), a nd committed simpl e assa ult . Id. As of petitioner’ s re- parole date, January 31, 2008, petitioner wa s to remain under parole supervision throug h May

29, 2019. Id. , Ex . 17 (Certificate of Parole dated January 31, 2008) at 1. Petitioner was ar

rested on a

drugpossession char g e on F ebrua ry 29, 2008. USPC Opp’n at 5. When he fa iled to appea r at a hear ing in Super ior Court, he wa s char g ed and later pled guilty to a violation of the B ail Reform Ac t (“B RA”). Id. On Octobe r 20, 2008, he w as sentenc ed to a ter

m of 90 day s’ imprisonment. Id. , Ex . 18 (Doc ket Sheet, Case N o. 2008 CMD
3007944) at 1. The USPC found proba ble ca use on five c harg es, includingtwo violations of law ( i.e. , drugpossession and the B RA violation). Id. , Ex . 19 (Adva nced Consent Rec ommendation dated January

12, 2009) at 1. It was re commended that parole be revoke d and that the ne w presumptive re parole date be set for Ma y 5, 2009. Id. Petitioner agree d to an expedited

revoc ation decision, id. , and the USPC issued a Notice of Action consistent with the agree ment. Id. , Ex . 20 (Notice of Ac tion dated J anuar y 30, 2009) at 1. Since petitioner’s r epar ole on May 5, 2009, petitioner has be en ar rested f our times. USPC Opp’n a

t 6. Robbery

and drug distribution charg es have been dismissed, and pe titioner enter ed guilty

pleas on the r emainingchar g es. Id . The Superior Court imposed sentence s on Fe bruar y 19, 2010. Id. , Ex . 22-23 (Doc ket Sheets, Case N os. 2009 CF2 022290 and 2009 CMD 024973). As a r esult of these c riminal char g es, the USPC issued a parole violator war rant on Dec ember

23, 2009. Id. , Ex . 24- 25 (r espec tively , Warrant a nd Warrant Application). Be cause petitioner alre ady

was in custody , the war

rant wa s lodge d as a de tainer. U SPC Opp’n at 7. II. DISCUSS ION Petitioner curr ently

is detained at the D.C. J ail, and he de mands his immediate rele ase from custody

on the g round that the USPC has exceede d its authority by extending his term of incar cer ation beyond that order ed by the Superior Court or othe rwise a uthorized by

law. A. The Parole Com m ission Does Not Perform Judicial F unction s Petitioner asserts that the U SPC improperly exercises judicial func tions when it issues

war rants, for feits stree t time, and imposes additional terms of inca rce ration as a

sanction for parole violations, in vi olation of the sepa ration of powe rs doctrine and in violation of the Due Process a nd Double Jeopardy

Clauses of the United States Constitution.

4Contrary to petitioner’s asse rtions, the USPC has no authority to impose a prison sentenc e upon conviction of a

crime; this authority

rests with the Superior Court of the District of Columbi a. SeeD.C. Code § 11-923(b) (grantingjurisdiction to the Superior Court over a ny criminal ca se under

District of Columbia law). Rather , the USPC has full authority to gr ant, deny , or re voke a D istrict of Columbia offende r’s pa role a nd to impose or modify

conditions upon an orde r of pa

role. See D.C. Code § 24-131(a ). I f a pa rolee alleg edly

has violated conditions of his relea se, the USPC is authoriz ed to “[i] ssue a wa rra nt for the a

pprehe nsion and return of the offe nder to c ustody ,” 28 C.F.R. § 2.98(a )(2) , and a w arr ant “ope rate s to bar the expiration of the parole e’s se ntence .” 28 C.F.R. § 2.98(e ); see O wens v. Gaines , 219 F. Supp. 2d 94, 101 (D.D.C. 2002) ( sentenc e tolled from the w arr ant’s issuance until the parolee was take n back into custody

upon execution of the wa rra nt). Amongthe ava ilable sanc tions for a pa rolee ’s violation of conditions of his relea se is his return to custody

. See28 C.F.R. § 2.20. The USPC’s actions in no way impinge on the judiciary ’s authority , as par ole re vocation is “a sepa rate administrative proc eeding [,] ” Maddox v . Elzie , 238 F.3d 437, 445 ( D.C. Cir. 2001), at which the U SPC “mer ely deter mines whether

the individual will serve the se ntence inside or outside the prison walls.” Artez v. Mulc rone , 673 F.2d 1169, 1170 ( 10th Cir. 1982) (per curiam); see G eraghty v . U.S. Parole Comm’n , 719 F.2d 1199, 1212 ( 3d Cir. 1983). In short, the USPC “does not e x erc ise a judicial func tion and its decisions do not viol ate the se paration of powers.” Hamme tt v. U.S. Parole Comm’n , No. 10-0442, 2010 WL1257669, at *1 (D.D .C. Apr. 2, 2010); Montgomery

v. U.S. Parole Comm ’n , No. 06-2113, 2007 WL1232190, at *2 (D.D .C. Apr. 26, 2007); Morrison v. U.S. Parole Comm’n , No. 04-2192, 2006 WL1102805, at *2 (D.D .C. Apr. 26, 2006).

5Fur thermore , the USPC’s actions in no way violate petitioner’s due proce ss rig hts. “It is established that District of Columbia prisoner s do not have a constitutionally

protec ted liberty interest in beingrele ased to pa role a nd there fore have no pr otections under the due proc ess clause with respec t to parole de terminations or proc edure s.” Thompson v. District of Col umbia Dep’ t of Corr. , 511 F. Supp. 2d 111, 113 (D.D .C. 2007) (citations omitted). L astly , beca use “the re is no double jeopar dy

protec tion ag ainst revoc ation of probation and the impositi on of imprisonment,” United States v. DiFranc esco , 449 U.S. 117, 137 (1980), the USPC’s decisions to revoke petitioner’s pa

role do not implicate the D ouble J eopar dy Clause. B. St reet Time is F

orfeited Upon Rev ocation of Parole Petitioner contends that his term of inc arc eration has been e x tended unlaw fully beca use he is denied c redit for

street time and be cause he has not be en aw arde d g ood time cre dit towards service of his sentenc e. Under District of Columbia law, when pa role is re voked, “[t]he tim e a prisoner wa s on parole shall not be taken into ac count to diminis h the time for whic h he wa s sentence d.” D.C. Code § 24-406(a ). Upon e ach pa role re vocation, a “ petitioner’s sente nce [is] not increa sed, but rathe r, the [USPC ] rescind[s] cre dit towards completion of that sente nce f or time spent on par ole,

as re quired by

D.C. law.” Campbell v. U.S. Parole Comm’n , 563 F. Supp. 2d 23, 25 (D.D .C. 2008). “It is settled that District of Columbi a prisoner s have ne ither a c onstitut ional nor a statutory rig ht to retain stree t-time cre dit once their pa role is re voked.” Jack

son v. Harrison , No. 05-1969, 2006 WL3313300, at *1 (D.D .C. Nov. 14, 2006). For feiture of stree t time violates neither the Double Jeopardy Clause nor the Ex PostFa cto Clause of the United States Constitution. Davis v. M oore , 772 A.2d 204, 209 (D.C. 2001) ( en banc ); see Jones v . Bureau of

6Prisons , No. 05-5054, 2002 WL31189792, *1 (D.C. Cir. Oct. 2, 2002) (per c uriam); Chappell v.

U.S. Parole Comm’n , No. 09-0361, 2009 WL485160, at *1 (D.D .C. Feb. 24, 2009) ; W atson v. Gaines , 589 F. Supp. 2d 72, 75-76 (D .D.C. 2008). Fur thermore , petitioner has no c onstitut ional or statutory

rig ht to the restoration of g ood time cre dits, as such cre dits “do not survive a prisoner’ s relea se” on pa

role. Bethea v . Fed. Bure au of Prisons , No. 10-0188, 2010 WL538196, at *1 (D.D .C. Feb. 3, 2010) . Rather, a fter pa role is re voked, “the acquisition of g ood time cre dit to advanc e a r elea se date beg ins anew.” Lorando v. W aldren , 629 F. Supp. 2d 60, 62 (D.D .C. 2009). III. CONCLUSION Be cause petitioner has made no showingthat he “is in custody in violation of the Constitution . . . of the United States,” 28 U.S.C. § 2241(c) (3), pe tition wil l be denied. An Orde r dismiss ing this petition acc ompanies this Memorandum Opinion.

/s/ EL L EN SEGAL

HUVEL L E United States District J udg e DATE: May

21, 2010

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