                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

_____________________________________
                                      )
RAYMOND BROWN III,                    )
                                      )
                Petitioner,           )
                                      )
               v.                     )
                                      )                 Civ. Action No. 14-1777 (ABJ)
UNITED STATES                         )
PAROLE COMMISSION,                    )
                                      )
                Respondent.           )
_____________________________________ )



                                 MEMORANDUM OPINION

       In this action for a writ of habeas corpus, petitioner Raymond Brown III challenges the

United States Parole Commission’s authority to revoke his parole and to rescind credit for the eight

years he spent on parole (“street-time credit”). Petitioner contends that the Commission has

violated the separation of powers doctrine and the Constitution’s ex post facto clause and double

jeopardy clause. The Commission counters that petitioner’s grounds for relief lack merit. See

Gov’t’s Opp’n to Pet’r’s Pet. for a Writ of Habeas Corpus [Dkt. # 6]. Since the Commission’s

authority over D.C. Code offenders is settled, and the challenged decision complied with D.C. law,

the Court agrees that petitioner has stated no grounds for relief. Accordingly, the petition will be

denied for the reasons explained below.

I.     BACKGROUND

       In December 1992, petitioner was convicted in the Superior Court of the District of


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Columbia of assault with a dangerous weapon, kidnapping while armed, and possession with intent

to distribute heroin. He was sentenced to an aggregate prison term of three to fifteen years.

Gov’t Ex. 2.1 Petitioner’s custody beyond fifteen years stems from his failed parole supervision

terms.

         A. First Parole

         On April 18, 1996, the then-D.C. Board of Parole released petitioner to parole supervision,

where he was to remain until the expiration of his sentence on December 7, 2007. Ex. 3. Petitioner

agreed to “narcotics surveillance” and an “outpatient drug program” as special conditions of his

parole. Id. Four months after his release to parole, petitioner was arrested in the District for

possession with intent to distribute heroin. Ex. 8. He was released on a personal recognizance

bond. Id. A jury convicted petitioner of the new charge on April 21, 1998, and he was sentenced

on June 10, 1998, to a prison term of two to six years, running consecutively to any other sentence.

Exs. 5, 8; see United States v. Brown, 1996 FEL 007523 (Sup. Ct.).

         On April 22, 1998, the Parole Board issued “a detainer warrant based on [the foregoing]

allegations of criminal violation(s) of parole.” Ex. 4. The warrant was executed the following

day, on April 23, 1998, by petitioner’s arrest. Ex. 8. The Parole Board conducted a parole

revocation hearing on July 7, 1998, revoked petitioner’s parole on July 30, 1998, and deferred

consideration of reparole until petitioner became eligible on the aggregated sentences. 2 Ex. 7.


1
    All of the cited exhibits are the Commission’s certified documents attached to the
government’s opposition [Dkt. # 6-1].
2
    When a later sentence is ordered to run consecutively to any other sentence, the prisoner is
credited for “the maximum and the minimum term of imprisonment for time spent in custody, or
on parole . . ., as a result of the offense for which [that] sentence was imposed.” D.C. Code § 24-
221.03(a). To the extent that petitioner is challenging the lawfulness of the Commission’s

                                                  2
       B. Second Parole

       In November 1999, the Commission, having assumed parole responsibility over D.C. Code

offenders, held an initial hearing for petitioner and scheduled a parole rehearing in June 2000.3

Ex. 9. On December 20, 2000, petitioner was released to parole supervision, where he was to

remain until the expiration of his sentence, recalculated to be November 30, 2015. Exs. 10-11.

Approximately eight years later, on April 8, 2008, the Commission issued a parole violator warrant

based on the following four charges: use of dangerous and habit-forming drugs; failure to submit

to drug testing; failure to report to supervision officer on several listed dates; and violation of the

special condition of drug aftercare. Ex. 12.

       The warrant was executed on April 30, 2008, by petitioner’s arrest, and petitioner denied

the charges at a probable cause hearing held on May 16, 2008. Ex. 14 at 1. However, on June

30, 2008, petitioner accepted the Commission’s proposed expedited decision to revoke his parole,

rescind his street-time credit, and set a reparole date of August 27, 2008, after petitioner’s service

of six months’ incarceration. Petitioner accepted responsibility for the charged behavior, and he

waived his right to a revocation hearing and to appeal the Commission’s decision. In addition,


aggregation of the consecutive sentences to determine his parole eligibility, see Pet’r’s Reply at 3-
4, the Court of Appeals long ago concluded that such claims “are patently frivolous and without
the requisite semblance of a foundation in law.” Goode v. Markley, 603 F.2d 973, 977 (D.C. Cir.
1979); see accord Bryant v. Civiletti, 663 F.2d 286, 289-90 (D.C. Cir. 1981) (concluding from
Goode that prison officials could properly “aggregate consecutive sentences for the purpose of
determining parole eligibility”).

3
    The U.S. Parole Commission assumed responsibility over D.C. Code offenders in 1998 as a
result of the National Capital Revitalization and Self-Government Improvement Act of 1997, Pub.
L. No. 105-33, 111 Stat. 712, 734-37, codified at D.C. Code §§ 24-101-142. See Fletcher v.
Reilly, 433 F.3d 867, 870 (D.C. Cir. 2006) (discussing “Changes to Parole and Reparole
Regulations for D.C. Code Offenders”).

                                                  3
petitioner agreed to special parole conditions consisting of drug, alcohol, and mental health

aftercare programs.        Exs. 15-16.   On August 27, 2008, petitioner was released to parole

supervision, where he is to remain until expiration of his sentence, recalculated to be December

28, 2022. Id., Ex. 17.

       C. Current Status

       Petitioner is on parole under the supervision of the D.C. Court Services and Offender

Supervision Agency. Gov’t’s Opp’n at 4 n.3. He filed this action on October 23, 2014, claiming

that the Commission’s recalculation of his sentence expiration date constitutes an unlawful

extension of the Superior Court’s sentence. See Pet. at 3-4. Petitioner insists that his “parole

sentence . . .has already expired.” Pet’r’s Mot. to Strike the Gov’t’s Opp’n Mot. and to Vacate

the Pet’r’s Parole Sentence Today at 16 (“Pet’r’s Reply”) [Dkt. # 8].

II.    ANALYSIS

       The extraordinary remedy of habeas corpus is available to District of Columbia prisoners

if the prisoner shows that he is “in custody in violation of the Constitution or laws or treaties of

the United States.” 28 U.S.C. § 2241(c)(3). Petitioner’s invocation of the separation of powers

doctrine and the double jeopardy clause mistakes the role of the paroling authority, and his ex post

facto claim is baseless.

       A. Separation of Powers and Double Jeopardy

       Petitioner’s separation of powers and double jeopardy arguments go hand in hand. He

contends that the Parole Commission “re-sentenced” him in violation of the double jeopardy clause

and that act usurped the role of the judiciary. See Pet. at 3-4. District of Columbia law confers

jurisdiction in the Commission to grant, deny, or revoke a District of Columbia offender’s parole


                                                  4
and to impose or modify his parole conditions. D.C. Code § 24-131(a), (c). Those functions do

not usurp a judicial function because they are performed in “a separate administrative proceeding,”

Maddox v. Elzie, 238 F.3d 437, 445 (D.C. Cir. 2001), as part of the execution of a court-imposed

sentence. Thus, “courts in this Circuit have . . . unanimously recognized that the Commission’s

exercise of its supervisory authority does not usurp the judicial function or offend the doctrine of

separation of powers.” Rahim v. U.S. Parole Comm’n, 77 F. Supp. 3d 140, 145 (D.D.C. 2015),

citing Smallwood v. U.S. Parole Comm'n, 777 F. Supp. 2d 148, 150 (D.D.C. 2011) (collecting

cases) (other citations omitted)); see Thompson v. District of Columbia Dep't of Corr., 511 F. Supp.

2d 111, 114 (D.D.C. 2007), quoting D.C. Code § 24-131(c) (the Commission “does not usurp a

judicial function when, as here, it acts ‘pursuant to the parole laws and regulations of the District

of Columbia’”); Hammett v. U.S. Parole Comm’n, No. 10-442, 2010 WL 1257669, at *1 (D.D.C.

Apr. 2, 2010) (observing that “[t]his argument, and similar separation of powers arguments, have

been raised often and rejected each time”) (examining cases).

       The double jeopardy clause “prohibits the executive branch from doubling down, bringing

multiple prosecutions or seeking successive punishments against a defendant for the same criminal

offense.” United States v. Morrow, 102 F. Supp. 3d 232, 248 (D.D.C. 2015), quoting United

States v. Cejas, 761 F.3d 717, 730 (7th Cir. 2014). Since, as already stated, a parole proceeding

is not a new criminal prosecution but rather a continuation of the original sentence that resulted in

parole, “jeopardy does not attach.” Hardy v. United States, 578 A.2d 178, 181 (D.C. 1990),

examining cases from the Fifth, Sixth and Eighth circuits. See U.S. v. DiFrancesco, 449 U.S.

117, 137 (1980) (finding “no double jeopardy protection against revocation of [parole] and the

imposition of imprisonment [because] [such] criminal sanctions do not involve the increase of a


                                                 5
final sentence.”); accord Johnson v. United States, 529 U.S. 694, 700 (2000) (noting that “treating

postrevocation sanctions as part of the penalty for the initial offense . . . avoids [double jeopardy]

difficulties”); Campbell v. U.S. Parole Comm’n., 563 F. Supp. 2d 23, 27 (D.D.C. 2008) (finding

the double jeopardy clause “simply not applicable to parole decisions”). So, the Court finds no

grounds for issuing the writ based on either the separation of powers doctrine or the double

jeopardy clause.

       B. Ex Post Facto

       An ex post facto violation occurs when a law “retroactively alter[s] the definition of crimes

or increase[s] the punishment for criminal acts.” Collins v. Youngblood, 497 U.S. 37, 43 (1990).

Petitioner contends that he was subjected to an ex post facto violation when the Commission

applied its “own new federal guidelines to the petitioner’s state sentence and [took away his] street-

time credits.” Pet. at 5. He posits that the rescission of the eight years he spent on parole

“unlawfully extended [his sentence] expiration date to December 4, 2023 [sic], when [his] parole

term would have expired in the year of 2015.” 4 Id. at 4.


4
    Petitioner agreed in June 2008 to the Commission’s expedited decision to revoke his parole,
rescind his street-time credit, and release him back to parole on August 27, 2008. Petitioner also
agreed to waive his right to a revocation hearing and right to appeal that decision. Ex. 15. He
therefore is “circumvent[ing] the bargain he struck by now seeking habeas relief.” Rahim, 77 F.
Supp. 3d at 144. Petitioner argues for the first time in reply to the government’s opposition that
his “public defender . . . coerced” him into accepting the Commission’s proposal and “was
ineffective in his/her act of duties, by tricking Mr. Brown into participating into an in house jail
probable cause hearing, knowing that probable cause hearing must be conducted by a magistrate
judge . . . .” Pet’r’s Reply at 4. That incredulous argument does not undermine the
Commission’s jurisdiction, and it does not support issuing the writ since “no constitutional right
to counsel attaches to a D.C. Code offender’s parole revocation proceedings, and absent such a
right ‘there can be no deprivation of effective assistance.’” Harris v. Fulwood, 947 F. Supp. 2d
26, 29 (D.D.C. 2013), quoting Coleman v. Thompson, 501 U.S. 22, 752 (1991); see Washington v.
U.S. Parole Comm'n, 859 F. Supp. 2d 21, 23 (D.D.C. 2012) (rejecting similar coercion argument


                                                  6
       Petitioner’s ex post facto claim has no traction for two reasons. First, the rescission of

street-time credit did not amount to increased punishment; it simply “returned [petitioner] to the

position he would have been but for his release to parole.” Thompson, 511 F. Supp. 2d at 113,

citing DiFrancesco, 449 U.S. at 137. Second, the controlling law went into effect in 1932, long

before petitioner committed his offense, and it “was never repealed.” Davis v. Moore, 772 A.2d

204, 215 (D.C. 2001) (en banc). It is established that in 2008, when the instant revocation

occurred, the rescission of street-time credit was required by D.C. Code § 24-406 (formerly § 24-

206). 5 See U.S. Parole Comm’n v. Noble, 693 A.2d 1084, 1094-1104 (D.C. 1997), reinstated 711

A.2d 85 (D.C. 1998) (en banc) (interpreting D.C. Code § 24-206(a) as requiring forfeiture of street-

time credit on certification of question from the District of Columbia Circuit); McKee v. U.S.

Parole Comm'n, 214 Fed. Appx. 1, 2 (D.C. Cir. 2006) (“Noble provided an authoritative statement

of the meaning of D.C. Code § 24-206(a) (1981) that was consistent with the statutory language.”);

Campbell, 563 F. Supp. 2d at 25-26 (discussing “firmly established” precedent that later statute



“as [petitioner] had no right to counsel at his parole-revocation hearing, he had no right to effective
assistance of counsel there”).
5
    The statute provided:

         If the order of parole shall be revoked, the prisoner, unless subsequently
         reparoled, shall serve the remainder of the sentence originally imposed less any
         commutation for good conduct which may be earned by him after his return to
         custody . . . . The time a prisoner was on parole shall not be taken into account
         to diminish the time for which he was sentenced.

D.C. Code § 24–206(a) (1981). The statute was amended on May 20, 2009, so that a parolee is
now credited for street time upon revocation, save two exceptions. Id. § 24-406(c). But the
amendments are not retroactive. See id., § 24-406(d) (“The provisions of subsection (c) shall
apply only to any period of parole that is being served on or after May 20, 2009, and shall not
apply to any period of parole that was revoked prior to May 20, 2009.”

                                                  7
providing for street-time credit upon revocation did not repeal older statute requiring forfeiture of

street-time credit upon revocation); Morrison v. U.S. Parole Comm’n, No. 04-2192, 2006 WL

1102805, at *3 (D.D.C. Apr. 26, 2006) (“The forfeiture of street time under Noble has consistently

withstood constitutional challenge.”) (citing cases). So, “there [was] no ex post facto violation

when [petitioner’s] sentence was recalculated to exclude any credit previously given for street

time.” Jones v. Bureau of Prisons, No. 02-5054, 2002 WL 31189792, at *1 (D.C. Cir. Oct. 2,

2002), citing Davis, 772 A.2d at 214-15.

                                         CONCLUSION

       The U.S. Parole Commission acted lawfully and within its jurisdiction when it revoked

petitioner’s parole in June 2008 and rescinded more than eight years of time spent on parole.

Accordingly, the petition will be denied. An order will issue separately.




                                              AMY BERMAN JACKSON
DATE: June 6, 2016                            United States District Judge




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