                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


Marlon Andre Wilson,                                   )
                                                       )
                        Petitioner,                    )
                                                       )
                        v.                             ) Civil Action No. 12-1700 (ESH)
                                                       )
United States Parole Commission,                       )
                                                       )
                        Respondent.                    )



                                   MEMORANDUM OPINION

         Petitioner, proceeding pro se, filed this action on October 17, 2012, for a writ of habeas

corpus under 28 U.S.C. § 2241, while confined at the District of Columbia Jail on a parole

violator warrant executed on August 27, 2012. (Pet. at 1.) Petitioner claims that his current

confinement violates the due process clause and federal regulations because the United States

Parole Commission (“Commission”) denied him a timely probable cause hearing and failed to

provide counsel to represent him. (Id. at 2, 4-5, 7-9.) Petitioner seeks an appointment of counsel

to represent him “for revocation” and his release “pending revocation and probable cause.” (Id.

at 9.)

         In its initial opposition, the Commission argues that petitioner’s claim based on the denial

of counsel is moot because the Federal Public Defender for the District of Columbia has agreed

to represent petitioner during revocation proceedings in the District of Columbia. (U.S. Parole

Commission’s Opp’n to Pet’r’s Pet. for a Writ of Habeas Corpus [Dkt. # 6] at 5-6.) In a

supplemental opposition filed on November 24, 2012, the Commission suggests that this action

is moot because the Commission has now “found probable cause to believe that the petitioner
has violated the conditions of his release based on four violations of law.” (U.S. Parole

Commission’s Supplement to Its Opp’n to Pet’r’s Pet. for a Writ of Habeas Corpus ¶ 2 [Dkt. # 8]

& Ex. A. [Nov. 15, 2012, Letter].) The Court agrees and will therefore deny the petition and

dismiss the case on the grounds of mootness.

                                             BACKGROUND

       This action arises out of petitioner’s aggregate sentence of 24 to 36 months’ incarceration

followed by three years’ supervised release imposed by the Superior Court of the District of

Columbia on September 21, 2007. (Resp’t’s Opp’n., Ex. 1.) On May 28, 2010, petitioner began

serving the supervised release term. (Id. at 1 & Ex. 2.) On August 24, 2011, the Commission

issued a violator warrant for petitioner’s arrest, citing seven violations of the terms of petitioner’s

supervised release that included four charges of criminal behavior. (Resp’t’s Exs. 6, 7.) On

October 11, 2011, petitioner pleaded guilty in three separate cases in the Circuit Court for

Montgomery County, Maryland, to credit card fraud and theft, and on June 26, 2012, petitioner

was sentenced by the Circuit Court of Fairfax County, Virginia, to five years’ imprisonment

following his conviction for forging a public record on March 5, 2011. (Resp’t’s Exs. 8, 9, 10,

12, 13.)

       The United States Marshals Service executed the Commission’s violator warrant on

August 27, 2012, by arresting petitioner and detaining him at the D.C. Jail. (Resp’t’s Ex. 6.)

The Commission supplemented its charges on August 29, 2012, and September 5, 2012, to

include petitioner’s convictions in Maryland and Virginia. (Resp’t’s Exs. 13, 14.)

       The Commission scheduled a probable cause hearing on September 4, 2012. According

to the handwritten notes in the D.C. Probable Cause Hearing Digest, the Public Defender Service

for the District of Columbia (“PDS”) could not represent petitioner since he had filed suit against



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that office. (Resp’t’s Ex. 15) [Dkt. # 6-16]); see 28 C.F.R. § 2.214(b) (designating PDS as

counsel for supervisees facing probable cause hearings). The probable cause hearing was

continued at petitioner’s request “to secure atty representation” either from his “Atty in MD” or

“Georgetown.” (Ex. 15 at 3.) Petitioner’s version of the proceeding is that the hearing examiner

denied “his request to go forward” on September 4, 2012, and “informed [him] that he needs

[sic] counsel to contact Georgetown law clinic.” Pet. at 8. In any event, the hearing was

continued to September 10, 2012 (Ex. 15 at 3), but occurred on September 11, 2012. (Resp’t’s

Ex. 16 (Examiner’s Memorandum).)

       According to the hearing examiner’s account of the rescheduled hearing on September

11, 2012, petitioner refused to proceed without counsel but did not want to continue the hearing.

(Ex. 16.) Petitioner refused to sign a form indicating his request for or waiver of counsel. (Id.)

Therefore, the hearing examiner was “prompted” by petitioner’s “response and [] lack of

cooperation . . . to select on the Probable Cause Digest that [petitioner] will have a [combined]

Probable Cause/Revocation Hearing.” (Id.) Eventually, petitioner signed the form on November

2, 2012, and applied for representation by the Federal Public Defender for the District of

Columbia. (Resp’t’s Ex. 17.) On November 20, 2012, Federal Public Defender A. J. Kramer

informed Assistant United States Attorney Sherri Berthrong that he was no longer representing

petitioner “as a result of [petitioner’s] request that the office not represent him due to a conflict

of interest.” (Suppl. Opp’n, Ex. B.)

       Meanwhile, the Commission informed petitioner on November 15, 2012, that it had

found “[p]robable cause . . . based on your guilty plea/conviction to each of [four listed]

charges.” (Id., Ex. A.) In a letter dated November 20, 2012, addressed to the Designation and

Sentence Computation Center, the Commission determined that petitioner “should be designated



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to a Federal Bureau of Prisons institution for his revocation hearing” and requested that

petitioner be so designated. (Id., Ex. C.) According to the Bureau of Prisons’ Inmate Locator,

http://www.bop.gov, petitioner is currently at the Federal Detention Center in Philadelphia,

Pennsylvania.

                                               DISCUSSION

        District of Columbia prisoners are entitled to habeas corpus relief under 28 U.S.C. § 2241

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). A delayed hearing to comport with due process does

not merit habeas relief absent a showing that the delay was “both unreasonable and prejudicial.”

Sutherland v. McCall, 709 F.2d 730, 732 (D.C. Cir. 1983). Even then, in most circumstances

applicable here “[t]he appropriate remedy . . . is a writ of mandamus to compel the Commission's

compliance with the [parole] statute not a writ of habeas corpus to compel release on parole or to

extinguish the remainder of the sentence.” Id.

        Petitioner is not entitled to mandamus relief because the Commission has since found

probable cause to detain him for a revocation hearing. See Jones v. Wainwright, 744 F. Supp. 2d

341, 343-44 (D.D.C. 2010) (“[B]ecause the USPC already has conducted both [probable cause

and revocation] hearings, petitioner is not entitled to mandamus relief.”) (citing Colts v. U.S.

Parole Comm'n, 531 F.Supp.2d 8, 11 (D.D.C. 2008)). Furthermore, the delay in providing

petitioner with a probable cause hearing was not unreasonable, since it was caused, not by the

Commission, but by petitioner’s conflicts with PDS and the FPD and his apparent unwillingness

to proceed without counsel. Even if petitioner could show unreasonable delay, he would not be

entitled to the writ because he has not shown the requisite prejudice. At the time of his arrest,

petitioner was (and remains) “under custody” for the convictions supporting the violator warrant.



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Sutherland. 709 F.2d at 732. Therefore, petitioner cannot credibly assert that he would have

been released but for the delayed probable cause hearing or that the delay deprived him of a

hearing to which he was entitled. See 28 C.F.R. § 2.214(h) (“Conviction of any crime committed

subsequent to the commencement of a term of supervised release” is conclusive evidence of

probable cause, “and no probable cause hearing shall be conducted unless a hearing is needed to

consider additional violation charges that may be determinative of the Commission's decision

whether to revoke supervised release.”)

                                            CONCLUSION

       For the foregoing reasons, the Court finds petitioner’s grounds for habeas relief to be

moot and, therefore, will deny the petition and dismiss the case. A separate Order accompanies

this Memorandum Opinion.


                                                                /s/
                                                     ELLEN SEGAL HUVELLE
                                                     United States District Judge

Date: January 15, 2013




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