                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


                                              :
WILLIAM A. BRITT,                             :
                                              :
                       Petitioner,            :
                                              :
       v.                                     :       Civil Action No. 08-1195 (EGS)
                                              :
STANLEY WALDERN, WARDEN,                      :
                                              :
                       Respondent.            :
                                              :


                                     MEMORANDUM OPINION

       This matter is before the Court on William A. Britt’s petition for a writ of habeas corpus.

For the reasons discussed below, the petition will be denied.

                                       I. BACKGROUND

       In the Superior Court of the District of Columbia, on October 7, 1998, petitioner was

sentenced to a term of five to 15 years’ imprisonment “for the crime of ‘Possession with Intent to

Distribute Cocaine while armed.’” Pet. at 1; U.S. Parole Commission’s Opposition to . . .

Petitioner’s Petition for Writ of Habeas Corpus (“Comm’n Opp’n”) Ex. A (Sentence Monitoring

Computation Data as of 02-10-2009) at 1. He “was released on parole on July 18, 2003 . . . with

3592 days remaining to be served on supervision.” Pet. at 1; see Comm’n Opp’n, Ex. B

(Certificate of Parole).1 Petitioner was arrested in Prince George’s County, Maryland on April 4,

2007 after an altercation described in the police report as follows:


       1
             According to the Certificate of Parole, petitioner was to remain under supervision
through May 20, 2013. Comm’n Opp’n, Ex. B at 1.

                                                  1
       On 04/04/07, at 2215 hours, this Officer responded to 16113 McConnell Drive,
       Upper Marlboro, Prince George’s County[,] Maryland[,] for a police officer in
       trouble (Signal 13). Upon my arrival, Victim #3 stated that he observed Arrested #1
       (BRITT, William Alonzo) [and] Arrested #2 [name omitted] assaulting Victim #1
       [name omitted]. Victim #3 identified himself as a Prince George’s County Police
       Officer to beating Victim #1. Victim #3 pulled both Arrested’s [sic] off Victim #1,
       then both of the Arresteds began to assault Victim #3 by punching him in the face,
       when he was trying to stop Arrested #1 and Arrested #2 from beating up Victim #1.
       Victim #3 pulled his county issued service weapon and ordered Arrested #1 and
       Arrested #2 to stop the assault. Arrested #2 stated to Victim #3 “I ain’t trippin[’] on
       no P.G. County cop[;] I will come back and shoot you and your truck up.” Arrested
       #1, #2, #3, and #4 jumped in a 1992 Chevrolet Van with District of Columbia
       registration [] [and] fled Northbound on Crain Highway where a felony traffic stop
       was conducted [by Prince George’s County officers]. Victim #2 [name omitted]
       stated that Arrested #3 [name omitted] along with Arrested #4 [name omitted] were
       at the door asking for Victim #1 then pushed Victim #2 out of the way. Arrested #1
       and Arrested #2 pulled Victim #1 out of the house punching him in the face with
       closed hands, then took him on the side of the house and continued to stomp him
       with their feet and punching him about his face and body.

Comm’n Opp’n, Ex. D (P.G. County Police Incident Report, Case No. 07-094-1803) at 2.

“Victim #1 sustained a fractured right jaw, swelling of the left and right eye, and a contusion on

his head” during the assault and was transported by ambulance to a hospital. Id. Victim #3, the

police officer, “suffered a cervical muscle strain.” Id. at 4.

       Petitioner was charged with “First Degree Assault (1 count), Second Degree Assault (1

[c]ount), and Reckless Endangerment.”2 Pet. at 1. “[I]n exchange for a guilty plea, the state [of

Maryland] amended one of the charges from 1st degree assault to 2nd degree assault.”3 Comm’n

Opp’n, Ex. K (September 18, 2008 Notice of Action on Appeal). Petitioner entered, and the


       2
              It appears that petitioner faced a total of four counts: first degree assault (1 count),
second degree assault (2 counts), and reckless endangerment (1 count). See Comm’n Opp’n, Ex.
G (Case Information, Circuit Court for Prince George’s County – Criminal System, Case No.
CT070948B) at 1.
       3
                The Court presumes that the charge of first degree assault arose from petitioner’s
assault on the Prince George’s County police officer.

                                                  2
Circuit Court for Prince George’s County accepted, an Alford plea to two counts of second

degree assault.4 Pet. at 4; Comm’n Opp’n, Ex. G (Case Information, Circuit Court for Prince

George’s County – Criminal System, Case No. CT070948B) at 3 (docket entry dated 1/07/2007).

       The Parole Commission issued a parole violator warrant on March 5, 2008. Comm’n

Opp’n, Ex. F (Warrant). According to the supporting Warrant Application, petitioner had tested

positive for marijuana use on six occasions (Charge No. 1 – Use of Dangerous and Habit

Forming Drugs). Id., Ex. F (Warrant Application) at 1. In addition, plaintiff was charged with

two law violations arising from the April 4, 2007 incident in Prince George’s County for first

degree assault and assault on a police officer (Charge No. 2 – Law Violation), and his arrest on

June 2, 2007 in the District of Columbia for driving while intoxicated (Charge No. 3 – Law

Violation). Id. at 2. Charge No. 2 subsequently was amended to reflect petitioner’s conviction in

the Circuit Court for Prince George’s County. Id., Ex. H (Supplement to Alleged Violation(s)

Report). The warrant was executed on March 13, 2008, and the Parole Commission conducted a

parole revocation hearing on May 14, 2008, at which petitioner was represented by counsel. Id.,

Ex. I (Hearing Summary) at 1. At the time of the hearing, petitioner had entered his Alford plea

but had not yet been sentenced by the Circuit Court for Prince George’s County. Id. at 2.

       The hearing examiner found that petitioner had violated the conditions of his parole by

using marijuana, and made no finding with respect to the charge of driving while intoxicated.




       4
               With an Alford plea, a criminal defendant may enter a plea in circumstances
where he “intelligently concludes that his interests require entry of a guilty plea and the record
before the judge contains strong evidence of actual guilt.” North Carolina v. Alford, 400 U.S.
25, 37 (1970).

                                                  3
Comm’n Opp’n, Ex. I at 2, 3. In addition, based on petitioner’s admission, the hearing examiner

found that petitioner had committed two counts of second degree assault. Id.

       According to the Hearing Summary, petitioner stated that the April 4, 2007 incident

“occurred due to an issue with his daughter in that his daughter’s mother called him in order to

help intervene in receiving their daughter.” Comm’n Opp’n, Ex. I at 2. Applying the parole

guidelines, the hearing examiner found that petitioner’s behavior justified a Category Five

severity level, with a re-parole guideline range of 48 to 60 months. Id. He believed that a

decision at the top of the guidelines, 60 months, was appropriate, and explained his reasons as

follows:

       [Petitioner] went to defuse a problem and got involved in an assault where somebody
       had a broken jaw and required medical attention. [He] did not defuse the situation
       and in fact his daughter was there when this behavior took place. This behavior is
       unacceptable and because he was the aggressor and not the victim the decision at the
       top of the guidelines is appropriate.

Id. at 3. Accordingly, the hearing examiner recommended that the Parole Commission revoke

parole, continuing the matter until a presumptive parole date of February 6, 2013 after service of

an additional 60 months’ incarceration. Id. The Parole Commission concurred with the hearing

examiner’s recommendation, id., Ex. J (June 17, 2008 Notice of Action), and the National

Appeals Board affirmed. Id., Ex. K.

       Petitioner alleges that the Parole Commission “made a mistake in [its] interpretation of

the event causing the petitioner grave injury in the deprivation of his Liberty.” Pet. at 5.

Notwithstanding petitioner’s allegations that the Parole Commission violated rights protected by

the Eighth, Fourteenth and Fifteenth Amendments to the United States Constitution, see id., the

Court construes petitioner’s claim as a due process violation under the Fifth Amendment.


                                                  4
                                         II. DISCUSSION

       In order to establish that the Parole Commission violated his due process rights, petitioner

must show that the parole revocation decision was “either totally lacking in evidentiary support

or so irrational as to be fundamentally unfair.” Duckett v. Quick, 282 F.3d 844, 847 (D.C. Cir.),

cert. denied, 537 U.S. 863 (2002). Review of the record demonstrates that the Parole

Commission had before it ample evidentiary support for its decision.

       Petitioner does not challenge the Parole Commission’s decision to revoke parole and he

does not deny that he committed assault. Rather, he disputes only the Parole Commission’s

assessment of his behavior during the April 4, 2007 incident at a Category Five severity level,

arguing that its assessment “place[es] the petitioner in a more onerous category than the facts

suggest.” Pet. at 4. Petitioner argues that the hearing examiner found him “guilty of Assault on a

Police Officer when that charge was actually amended by the Court in Prince Georges [sic]

County where he entered an Alford plea to two counts of Second Degree Assault.” Id. at 3. In

his view, the incident was less serious than the hearing examiner believed, as petitioner merely

was “caught in an event of pandemonium” during which “an unannounced officer gets involved,

draws a weapon, and everyone flees the scene without the instance of a discharged weapon.” Id.

at 4. Petitioner further explains his behavior by stating that he “was confronted by a plain

clothed unbeknown to him law enforcement official who attempted to break up the fight,” and

“then, (instinctively) became combative to said officer[’]s interaction as if he was part of an

entourage.” Id. at 3. It is petitioner’s position that, “[b]ased on the facts in the event given he

amended charges,” his behavior should have been characterized at a Category Two severity level

with a guideline range of 12 to 16 months. Id. at 5.


                                                  5
       Before the Parole Commission was evidence that petitioner “engaged in behavior

constituting new criminal conduct.” 28 C.F.R. § 2.21(b)(1). This evidence included petitioner’s

own admission at the revocation hearing, a copy of the Incident Report, and evidence pertaining

to criminal proceedings, including petitioner’s Alford plea, in the Circuit Court for Prince

George’s County. The fact that petitioner neither was charged with, convicted of, nor pled guilty

to assault on a police officer is irrelevant. The Parole Commission may consider in its

deliberations any relevant information, including facts underlying criminal charges, even if those

charges were amended. See Crawford v. Barry, No. 95-7073, 1996 WL 734096, at *1 (D.C. Cir.

Nov. 8, 1996) (per curiam) (concluding that the Parole Board properly relied on criminal charge

of which appellant had been acquitted); Mack v. McCune, 551 F. 2d 251, 254 (10th Cir. 1977)

(per curiam) (concluding that a state court conviction later overturned did not undermine Parole

Commission’s independent determination of criminal conduct based on parolee’s admission).

       Upon the finding that petitioner engaged in new criminal conduct, the Parole Commission

calculated an “appropriate severity rating for the new criminal behavior.” 28 C.F.R. § 2.21(b)(1).

According to the Offense Behavior Severity Index, assaultive behavior is considered Category

Five behavior “[i]f bodily injury results.” 28 C.F.R. § 2.20 (Offense Behavior Severity Index),

Chapter 2 (Offenses Involving the Person), Subchapter B (Assault Offenses), para. 212. The

Incident Report states that the first assault victim sustained a fractured jaw, swelling to his eyes,

and contusions to his head after having been punched and stomped by petitioner and another

individual.

       “The Parole Commission need only find a violation of parole conditions by a

preponderance of the evidence.” Allston v. Gaines, 158 F. Supp. 2d 76, 80 (D.D.C. 2001); see 28


                                                  6
C.F.R. § 2.105(a). The Parole Commission’s findings that petitioner engaged in new criminal

conduct, assault, and that the conduct resulted in bodily injury to the victims, are amply

supported in the record.

                                         III. CONCLUSION

       Because petitioner cannot show that the revocation decision was totally lacking in

evidentiary support or so irrational as to be fundamentally unfair, his petition for a writ of habeas

corpus will be denied. An Order accompanies this Memorandum Opinion.



                               Signed:        EMMET G. SULLIVAN
                                              United States District Judge

                               Dated:         March 9, 2009




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