                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


TRACY MCFADDEN,                                )
                                               )
               Petitioner,                     )
                                               )
        v.                                     )       Civil Action No. 11-1658 (JEB)
                                               )
SIMON T. WAINWRIGHT, et al.,                   )
                                               )
               Respondents.                    )



                                   MEMORANDUM OPINION

        Petitioner in this action for a writ of habeas corpus “is no novice to the [District of

Columbia] parole scheme,” McFadden v. Wainwright, No. 10-1198, 2010 WL 4871193, at *1

(D.D.C. Dec. 1, 2010) (citation omitted), and no stranger to this Court. He is currently confined

at the Rivers Correctional Institution in Winton, North Carolina, but he filed this action while

incarcerated at the District of Columbia Jail on yet another parole-violator warrant. Indeed,

Petitioner has been released on parole from the same sentence and then revoked at least six

times. See McFadden v. United States Parole Comm’n, No. 10-597, ECF No. 14 (Sept. 27,

2010, Mem. Op.) at 1-2. The legitimacy of Petitioner’s latest parole-revocation proceedings in

2011 forms the basis of the instant Petition for a writ of habeas corpus under 28 U.S.C. § 2241.

As the Court finds no basis for issuing the writ, it will deny the Petition and dismiss the case.

   I.        Background

        Petitioner’s custody arises from his aggregate prison sentence of 7-21 years imposed by

the Superior Court of the District of Columbia on October 6, 1989. Pet. at 2; see Opp. at 1 &

Exh. 1 (listing sentencing date for F-10288-86 and F-15311-88 as July 26, 1989); McFadden v.
Wainwright, 2010 WL 4871193, at *1 (“Petitioner is serving an aggregate sentence of 21 years'

imprisonment based on consecutive sentences imposed by the Superior Court of the District of

Columbia in July and October 1989.”). He had previously been released on parole from this

sentence in 1995, 2001, 2003, 2006, and 2009. McFadden v. United States Parole Comm’n,

Mem. Op. at 1-2.

       On March 22, 2011, the United States Parole Commission released Petitioner to parole

supervision once again, where he was to remain until March 1, 2020. Opp., Exh. 3 (Parole

Certificate). In a violation report dated less than two weeks later on April 4, U.S. Probation

Officer Stacey A. Carter, citing her unsuccessful attempts to reach Petitioner, requested that the

Commission issue a warrant for his arrest for his failures to report for supervision and to notify

the Commission of his “current whereabouts.” Id., Exh. 4 (April 4, 2011, Letter from Stacey

Carter). The Commission issued the warrant ten days later, and the United States Marshals

Service arrested Petitioner on July 8, 2011. Id., Exh. 6 (USPC Warrant, Marshal’s Return).

       On July 12, 2011, the Commission held a probable cause hearing where Petitioner,

represented by the District of Columbia Public Defender Service, denied the sole charge of

Failure to Report for Supervision. Id., Exh. 7 (D.C. Probable Cause Hearing Digest). Hearing

Examiner Paul Howard nonetheless found probable cause to hold Petitioner for a revocation

hearing, id. at 3, which he conducted on August 11 at the District’s Correctional Treatment

Facility. Id., Exh. 8 (Hearing Summary). Petitioner was represented again by a PDS attorney,

who requested a continuance to (1) obtain records under the Freedom of Information Act

regarding Petitioner’s mental health, (2) accommodate two witnesses who could testify about

Petitioner’s learning disability, and (3) allow time for Petitioner’s pending habeas petition in

federal court to be addressed. Id. at 1-2. Examiner Howard denied counsel’s request because it
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was untimely and because he did not “believe [that] the requested information [would] have any

bearing on the nature of the charges.” Id. at 2.

       In addition to his continuance request, counsel challenged the Commission’s “authority to

conduct [the revocation] hearing because a parole certificate was not issued or executed by the

subject[;] [t]herefore[,] the subject had no instructions as to what his obligations were . . . .” Id.

Finally, counsel also challenged Howard’s ability to be neutral given “the conversations between

[Howard] and [Petitioner] at the Probable Cause Hearing on 7/12/2011.” Id. Examiner Howard

rejected counsel’s argument questioning the Commission’s authority because “the evidence []

showed that [Petitioner] had more than enough indication that he [] was on parole,” and he

rejected counsel’s argument questioning his neutrality because the charge was “a minor

administrative violation that require[d] testimony from an adverse witness.” Id. Howard stated,

moreover, that Petitioner’s counsel had made no “objections on how the Probable Cause Hearing

was conducted” in the digest “executed by counsel,” and he concluded that “this examiner is

capable of being neutral and detached in conducting this hearing.” Id.

       After Petitioner “became visibly upset and left [the hearing] room” despite a warning that

the hearing would continue without him, the hearing proceeded with Petitioner’s counsel and the

testimony of USPO Carter. Id. Following Carter’s testimony, see id. at 3-4, Howard found from

the testimony and documentary evidence that Petitioner had indeed violated the conditions of his

release by failing to report for supervision and recommended that Petitioner’s parole be revoked

with a reparole guideline range of 12-16 months. Id. at 4.

       On September 19, 2011, the executive reviewer, S. Husk, considered the argument of

Petitioner’s counsel for vacating the revocation hearing based on Howard’s alleged bias, his

refusal to grant the continuance, and the unexecuted parole certificate, but did not find these
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arguments persuasive. Id. at 5-6. Husk concluded that because Petitioner “has demonstrated an

inability/unwillingness to comply with conditions of parole based on his repeated failures under

supervision,” he supported Howard’s “recommendations including the decision to reparole at the

top of the guideline range.” Id. at 6. The Commission adopted Howard’s recommendation and

issued a memorializing Notice of Action on September 21, 2011. Id., Exh. 9 (Notice of Action).

Meanwhile, Petitioner filed suit in this Court on September 14, 2011.

    II.      Analysis

          District of Columbia prisoners are entitled to habeas corpus relief if they establish that

their “custody [is] in violation of the Constitution or laws or treaties of the United States.” 28

U.S.C. § 2241(c)(3). The handwritten Petition scanned into the electronic docket is barely

legible in places, and the original paper copy is no longer available. Therefore, the Court has

read Petitioner’s stated grounds for relief in conjunction with the United States’ summary of

those grounds and discerns the following claims: (1) the revocation proceeding was invalid

because Petitioner never signed a parole certificate upon his release from the D.C. Jail setting

forth the terms of his release and was thus unaware of the reporting requirement; (2) Hearing

Examiner Howard erred in denying Petitioner’s motion to continue the revocation hearing to

gather “proper documents” and secure his witnesses; and (3) the Commission erred in allowing

Howard to conduct the revocation hearing since “[Howard] got into some heated arguments

[with Petitioner] and exchanged words” at the probable cause hearing. Pet. at 5-6; Opp. at 1. 1




1
 Petitioner also asserts that he was arrested on July 2, 2011, and “sat” until July 8, 2011, “before my warrant was
executed[.] My warrant application says my violation date (3-22-11) is my release date[.] How can this be when I
was released at 7:51 p.m. how is this possible[?].” Pet. at 5 (Ground Two). The Court can perceive no cognizable
claim from Petitioner’s rumination.

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       Although Petitioner does not specifically say so in his Petition, the Court can safely

assume that he is claiming that the foregoing alleged misconduct deprived him of due process. A

parolee has a Fifth Amendment liberty interest in maintaining his conditional freedom and

therefore is entitled to due process prior to revocation. See Ellis v. District of Columbia, 84 F.3d

1413, 1420 (D.C. Cir. 1996) (citing Morrissey v. Brewer, 408 U.S. 471 (1972)). That

entitlement, however, is limited to notice and an opportunity to be heard in a meaningful and

reasonably timely manner, see id. at 1421-24 (discussing Morrissey’s standards), and to a

decision that is neither “totally lacking in evidentiary support [n]or [] so irrational as to be

fundamentally unfair.” Duckett v. Quick, 282 F.3d 844, 847 (D.C. Cir. 2002) (citations omitted).

Bearing this standard in mind, the Court will address each of Petitioner’s arguments in turn.

       Petitioner first asserts that he was not aware of his reporting requirements since he never

signed a parole certificate upon his release from the D.C. Jail. Examiner Howard determined

that “based on the evidence . . ., [Petitioner] had more than enough indication that he . . . was on

parole” and was thus subject to the reporting requirement. Hrg. Summ. at 2. In so finding,

Howard reasonably relied on the testimony of USPO Carter, who recounted that, in February

2011, she prepared a release plan for Petitioner, visited a home in Maryland where Petitioner was

to reside, and spoke with an individual there who reportedly had spoken with Petitioner “about

his release plans and proposed residence.” Id. at 3; see Crawford v. Jackson, 323 F.3d 123, 128

(D.C. Cir. 2003) (“Reliance on hearsay in parole revocation proceedings is not per se

impermissible,” and indeed is acceptable as long as “the evidence considered as a whole . . . [is]

[] sufficient in [both] quantity and reliability to ensure fundamental due process rights.”)

(citations omitted). Thereafter, Carter approved the release plan. Hrg. Summ. at 3. Upon

learning that Petitioner’s release was delayed because he had violated the rules of a halfway
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house and been returned to custody, Carter stated that she told the person at the Maryland

residence to “instruct [Petitioner] to report for supervision” after his release from the D.C. Jail

on March 22, 2011. Id. When Petitioner did not report and was not reachable by telephone,

Carter, on March 29, 2011, left a voicemail message for Petitioner and sent a letter to the

Maryland residence instructing Petitioner to report on April 4, 2011. Id. Carter conducted

another home visit on March 30, 2011, and left a business card with instructions for Petitioner to

contact her office. After Petitioner failed to return Carter’s voicemail message of April 1 or to

report on April 4, Carter requested the violator warrant. Id. Carter “acknowledged that a parole

certificate was not executed because [Petitioner] never reported” for supervision. Id.

       After hearing arguments from both sides on the alleged implications of the unexecuted

parole certificate, Howard made the following determination:

          [Petitioner] has been on supervision six times and is familiar with his parole
          obligations. In addition to the NOA that was generate[d] after his last
          revocation and a copy provided to [Petitioner], there is the release plan
          investigation that [Petitioner] signed . . ., progress reports generated by the
          [Bureau of Prisons] that includes the supervising district and [Petitioner’s] .
          . . signature. Most damaging is the probable cause digest that was
          generated at the 7/12/2011 probable cause hearing and signed by counsel,
          and a copy provided to all parties. On the last page of the digest . . . is the
          notation “H.E. – subject acknowledged he was aware he was on parole.”
          Counsel not only signed the document but did not object to the statement
          nor did [Petitioner] after being given a copy. This final indicator including
          the other evidence is sufficient to conclude [Petitioner] was aware of his
          parole obligations.

Id. at 4. In addition, Howard noted that “[a]ll [of Petitioner’s] five revocations included failure

to report for supervision.” Id. The Court cannot find that such a determination is fundamentally

unfair or lacking in evidentiary support. See Duckett, 282 F.3d at 847 (finding no due process

violation where “the BOP appears to have considered both the seriousness of Duckett's violation


                                                  6
[failure to report] and the mitigating factors he advanced,” such as his unawareness of the

reporting requirement).

        Petitioner next argues that the Hearing Examiner erred in failing to grant a continuance so

that Petitioner could obtain documents and witnesses to present evidence regarding his mental

health. There is no dispute that Petitioner’s continuance request was made on the day of the

hearing. Hrg. Summ. at 1. Under 28 CFR § 2.101(d)(2), “[a] request for a postponement [of a

revocation hearing] that is received by the Commission less than fifteen days before the

scheduled date of the revocation hearing will be granted only for a compelling reason.” The

Hearing Examiner’s denial is not fundamentally unfair because Petitioner’s request is not

compelling. Examiner Howard determined that this evidence would not have changed the

outcome, Hrg. Summ. at 2, and that determination is hardly irrational. There is no allegation of

incompetence here or any severe cognitive impairment; indeed, Petitioner’s pleadings are

comprehensible, and he himself says, “I don’t or do not have any law experience, but I can read

and comprehend.” Reply (styled “Response") at ECF page no. 2. As a result, even considering

some mental health or learning impairments, he would have had a hard time arguing he did not

know of his reporting requirements given Carter’s efforts and Petitioner’s five previous parole

experiences, all of which resulted in revocation at least in part for failure to report.

        Finally, Petitioner claims that Examiner Howard should have recused himself from the

revocation because of heated words that he exchanged with Petitioner at the probable cause

hearing. Howard denied this request on the ground that Petitioner’s counsel never expressed any

objections to Howard’s conduct of the initial hearing and because Howard believed he could be

“neutral and detached.” Hrg. Summ. at 2. Once again, there seems to be neither fundamental

unfairness nor irrationality in such a decision. There are certainly occasions when sharp words
                                                   7
are exchanged in courtrooms between judges and counsel or litigants, and a single such dispute –

without any mention of the substance or even what Howard is alleged to have said – hardly

warrants recusal.

          The probable cause and revocation hearings at which Petitioner was ably represented by a

PDS attorney – coupled with the hearing examiner’s rational explanations for denying the

requested continuance and the recusal, and for recommending the parole revocation – comported

with the Fifth Amendment’s due process requirements.

   III.      Conclusion

          As the Court finds no basis for issuing the requested writ of habeas corpus, Petitioner’s

application will be denied and the case dismissed. A separate final order accompanies this

Memorandum Opinion.



                                                       /s/ James E. Boasberg
                                                        JAMES E. BOASBERG
                                                       United States District Judge

Date: June 14, 2012




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