                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


SHAWN VACTOR,                                  )
                                               )
               Petitioner,                     )
                                               )
        v.                                     )       Civil Action No. 11-1249 (JEB)
                                               )
UNITED STATES PAROLE                           )
COMMISSION,                                    )
                                               )
               Respondent.                     )



                                  MEMORANDUM OPINION

        In this action for a writ of habeas corpus filed on July 8, 2011, Petitioner alleges that he

was arrested on May 25, 2011, on a violator warrant issued by the United States Parole

Commission, but has yet to receive a probable-cause hearing. He contends that the Commission

has violated its own rules and procedures by failing to hold a timely hearing, and he seeks his

immediate reinstatement to supervised release. 1 Pet. at 2. The Commission counters that his

claim is moot because, although delayed, a probable-cause hearing was held on Aug. 2, 2011,

and a revocation hearing is set for next week. See Opp. at 3-4. In addition, no prejudice from

the delay accrued to Petitioner. As the Court agrees, it will deny the petition and dismiss the

case.




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  The Commission assumed parole authority over District of Columbia prisoners on August 5,
1998. See D.C. Code § 24-131; Franklin v. District of Columbia, 163 F.3d 625, 632 (D.C. Cir.
1998); Smallwood v. U.S. Parole Comm’n, 777 F. Supp. 2d 148, 150 (D.D.C. 2011). It has
“similar authority with respect to terms of supervised release imposed by the Superior Court of
the District of Columbia.” Smallwood, 777 F. Supp. 2d at 150 (footnote and citations omitted).
    I.       Background

          Petitioner pled guilty to cocaine distribution and, on October 11, 2005, was sentenced by

the Superior Court of the District of Columbia to a prison term of 30 months, followed by a five-

year term of supervised release. Opp., Exh. 1 (Judgment and Commitment Order). He began

serving the supervised-release term on December 5, 2007. See id., Exhs. 2, 3. On May 25, 2010,

the Commission issued a violator warrant on the grounds that Petitioner had violated the terms of

his supervision by his (1) “Use of Dangerous and Habit Forming Drugs,” (2) “Failure to Submit

to Drug Testing,” and (3) “Failure to Report to Supervising Officer as Directed.” Id., Exh. 3

(Warrant and Warrant Application) at 4. On March 18, 2011, the Commission supplemented the

warrant by adding a “Law Violation” charge in light of Petitioner’s arrest on February 15, 2011,

for possession with intent to distribute crack cocaine, marijuana, and amphetamines, and

possession of drug paraphernalia. Id., Exh. 5 (Supplement). On May 25, 2011, the Superior

Court dismissed the foregoing charges for want of prosecution because the government’s chemist

was unavailable. Id., Exh. 6 (Courtview Printout) at 1. The United States Marshal then executed

the Commission’s violator warrant the next day. Id., Exh. 3 at 2.

          Petitioner filed this action on July 8, 2011, from the District of Columbia Jail. On August

2, 2011, the Commission conducted a probable-cause hearing at which Petitioner was

represented by counsel, found probable cause on all four of the violator charges, and scheduled a

revocation hearing for the week of October 3, 2011. Opp., Exh. 7 (Hearing Digest); Exh. 8

(Courtview).

    II.      Analysis

          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
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United States." § 2241(c)(3). Although he does not specifically say so in his petition, the Court

may safely presume that Petitioner is claiming a due process violation in the Commission’s

failure to hold a probable-cause hearing within the requisite five days. See Morrissey v. Brewer,

408 U.S. 471, 485 (1972) (“[D]ue process would seem to require that some minimal inquiry be

conducted at or reasonably near the place of the alleged parole violation or arrest and as

promptly as convenient after arrest while information is fresh and sources are available.”)

(citation omitted); Sutherland v. McCall, 709 F.2d 730, 732 (D.C. Cir. 1983) (“Habeas relief

pursuant to constitutional due process protections recognized in [Morrissey] is only available

where a petitioner establishes that the Commission's delay in holding a revocation hearing was

both unreasonable and prejudicial.”) (citations omitted).

       The applicable regulations state that “[a] supervised releasee who is retaken and held in

custody in the District of Columbia on a warrant issued by the Commission, and who has not

been convicted of a new crime, shall be given a probable cause hearing by an examiner of the

Commission no later than five days from the date of such retaking.” 28 C.F.R. § 2.214 (a). If

probable cause is found, “the examiner shall schedule a final revocation hearing to be held within

65 days of the releasee’s arrest.” Id. It is undisputed that Petitioner had a probable-cause

hearing on August 2, 2011, which is more than five days after his arrest on May 26, 2011, and is

scheduled for a revocation hearing in early October, more than 65 days after the arrest.

       The question, therefore, is whether such delay warrants a granting of Petitioner’s request

that he be released. The D.C. Circuit has made clear that the due process clause is violated only

by a delay that is both unreasonable and prejudicial. Sutherland, 709 F.2d at 732; see also Hill v.

Johnston, 750 F. Supp. 2d, 103, 106 (D.D.C. 2010) (finding “challenge to the timeliness of


                                                 3
[Petitioner’s] revocation hearing … meritless” in the absence of “a showing that the delay both

was unreasonable and actually prejudiced petitioner”) (citing Sutherland).

       A two-month delay in holding a probable-cause hearing is not per se unreasonable. See

Morrissey, 408 U.S. at 488 (two months from arrest to revocation hearing “would not appear to

be unreasonable”); Sutherland, 709 F.2d at 732-33 (33-month delay not unreasonable where

prejudice not shown); Crum v. United States Parole Comm'n, 814 F. Supp. 1, 3 (D.D.C. 1993)

(delay in excess of 90 days not violative of due process where prejudice not shown). The Court

concurs that a 63-day delay in the circumstances present here is not unreasonable absent any

showing of prejudice.

       Petitioner, however, claims that he did indeed suffer prejudice by the delay. More

specifically, he claims in his Reply that “the delay has prejudiced the petitioner which has made

it impossible to contact or locate witnesses and produce documents.” Id. at 1. Such broad,

unsupported allegations will not suffice. Petitioner never explains how a two-month delay

hampered his ability to locate witnesses or find documents. He could have begun this effort after

his arrest, and he does not claim that witnesses died or moved away in the intervening time.

Indeed, the most logical inference would be that the additional time would have assisted his

effort. In addition, at the probable-cause stage, the inquiry is merely whether sufficient evidence

exists “to hold the parolee for the final decision of the parole board on revocation.” Morrissey,

408 U.S. at 487. The contesting of evidence and “the opportunity to be heard and to show . . .

that [the supervisee] did not violate the [release] conditions” are matters left for the revocation

hearing. Id. at 488; see id. (explaining that revocation “hearing must be the basis for more than

determining probable cause; it must lead to a final evaluation of any contested relevant facts and

consideration of whether the facts as determined warrant revocation”). In this case, Petitioner
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appeared with counsel for the hearing, and the hearing officer found probable cause for each of

the four violations. The Court, accordingly, cannot find that Petitioner was prejudiced by the

two-month delay.

           Where neither unreasonable delay nor prejudice exists, the appropriate remedy for a

delayed hearing is “a writ of mandamus to compel the Commission's compliance with the

statute[,] not a writ of habeas corpus to compel release on parole or to extinguish the remainder

of the sentence.” Sutherland, 709 F.2d at 732 (citations omitted). Now that the probable-cause

hearing has been held and the revocation hearing has been scheduled for next week, Petitioner’s

claim for mandamus relief is moot. See Colts v. U.S. Parole Comm’n, 531 F. Supp. 2d 8, 11

(D.D.C. 2008) (“[B]ecause the USPC already has conducted both [probable cause and

revocation] hearings, petitioner is not entitled to mandamus relief.”); see also West v. Horner,

2011 WL 4071854, at *4 (D.D.C. Sept. 14, 2011) (“If events outrun the controversy such that the

court can grant no meaningful relief, the case must be dismissed as moot.”) (internal quotation

and citation omitted); Thomas v. U.S. Parole Commission, 1992 WL 193695, at *3 (D.D.C.

1992) (case moot where petitioner, who complained of delayed revocation hearing, had since

received it).

    III.      Conclusion

           For the foregoing reasons, the application for a writ of habeas corpus will be denied. A

separate Order accompanies this Memorandum Opinion.


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

Date: September 29, 2011

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