                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

RICARDO C. JENKINS,

                      Plaintiff,

                      v.                          Case No. 1:14-cv-00660 (CRC)

UNITED STATES DEPARTMENT OF
JUSTICE, et al.,

                      Defendants.

                           MEMORANDUM OPINION AND ORDER

       Ricardo Jenkins has petitioned this Court for a Writ of Habeas Corpus, contending that the

Parole Commission should not have re-incarcerated him due to failed drug tests while he was on

supervised release. The United States opposes the Petition. It argues that Jenkins’ incarceration

and current supervised release are legal and that Jenkins has failed to exhaust administrative

remedies. For the reasons discussed below, the Court will deny the petition.

       I.      Background

       Jenkins pled guilty to attempted distribution of a controlled substance (cocaine), and on

April 28, 2011, the Superior Court of the District of Columbia sentenced him to 20-month term of

incarceration followed by a two-year term of supervised release. Pet. ¶¶ 1–4; See United States’

Opp’n to Habeas Pet. (“Gov’t Opp’n”), Ex. A (Sentence Monitoring and Computation Data as of

03-05-2012) at 1. Jenkins was released from custody on May 8, 2012. See id., Ex. B (Warrant

Application dated September 16, 2013) at 1. On September 16, 2013, the United States Parole

Commission (“Parole Commission”) issued a warrant for Jenkins’s arrest on charges that he had

violated certain conditions of his supervised release. Id., Ex. B (Warrant Application) at 1–2.

       First, Jenkins was said to have used dangerous and habit forming drugs. According to his

community supervision officer, “[b]etween 5/8/12 and 8/21/13, [Jenkins] submitted 99 urine
specimens which tested positive for: Cocaine, Opiates and Marijuana.” Id. at 1. Second, Jenkins

allegedly failed to submit to drug testing on 14 occasions. Id. at 2. Third, Jenkins allegedly failed

to complete a drug treatment program at the Central Union Mission. Id. Fourth, Jenkins failed to

comply with requirements of the Andromeda Drug Aftercare program, by twice submitting urine

specimens that tested positive for cocaine. Id. The warrant was executed on October 3, 2013, and

Jenkins was returned to custody. Id., Ex. B (United States Marshal’s Return to United States Parole

Commission).

       Based on Jenkins’s admissions, a hearing officer found probable cause that Jenkins

committed the violations, except as to the charge that Jenkins failed to complete a drug treatment

program at Central Union Mission. Id., Ex. D (D.C. Probable Cause Hearing Digest dated October

11, 2013) at 2–3. In lieu of a revocation hearing before the Parole Commission, Jenkins applied to

participate in the Short-Term Intervention for Success (“SIS”) program. Id., Ex. E (Short

Intervention for Success Application dated October 21, 2013). SIS is a pilot program focusing

primarily on drug intervention over re-incarceration for drug-related violations of supervised

release. See id. By applying for SIS, Jenkins “accept[ed] responsibility for the violations of

supervision alleged against [him],” and understood that the Parole Commission would impose a

sentence of no more than eight months incarceration and an additional period of supervised release

within the maximum authorized term for the underlying offense. Id. at 1. He also acknowledged

that the Parole Commission would revoke supervision and issue a Notice of Action setting forth the

new sentence, which he could not appeal. Id. at 2. However, if Jenkins “believe[d] that the [Parole]

Commission has (1) erred in determining [his] release date; [or] (2) included special conditions of

supervision that are not supported by [his] background,” [Jenkins] could “request that the [Parole]

Commission amend its decision.” Id.

       After approving Jenkins’s SIS application, the Parole Commission revoked his supervised

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release, directed that he “serve a new term of incarceration of three months from October 3, 2013,

the date the warrant was executed,” and imposed “an additional term of supervised release of 57

months” after his release from incarceration. Id., Ex. F (Notice of Action dated October 25, 2013)

at 1. It also set the following Special Drug and Alcohol Aftercare Condition:

                 [Jenkins shall] participate, as instructed by [his] Supervision Officer,
                 in an approved inpatient or outpatient program for the treatment of
                 narcotic addition or drug and alcohol dependency. The treatment
                 program may include testing and examination to determine whether
                 [he has] reverted to the use of drugs. [Jenkins] shall abstain from the
                 use of alcohol and all other intoxicants during and after the course of
                 treatment. If so instructed by a Bureau of Prisons institutional
                 employee or [his] Supervision Officer, [Jenkins] shall reside in and
                 participate in a program of[] the Re-Entry and Sanctions Center until
                 discharged by the Center Director.

Id., Ex. F at 1. 1

        II.      Analysis

        In applying for SIS, Jenkins agreed that he “cannot appeal the decision provided in the

Notice of Action.” Yet Jenkins’ habeas petition does precisely that: He argues that the Parole

Commission’s Notice of Action was excessive. Pet. ¶ 8. 2 Jenkins says he should not have received

any additional time of incarceration or supervised release, but instead should have been kept in an

inpatient program. Id. He also contends that the Parole Commission's decision did not take into

account his use of prescribed pain medication after surgery and his occasional use of “cocaine

instead of the narcotic that was in [his] pain medication.” Id.




1
  Even though Jenkins is not incarcerated, he is deemed “in custody” as long as he remains on
supervised release. See Judd v. Gonzales, No. 13-1504, 2013 WL 5615049, at *1 n.1 (D.D.C. Oct.
15, 2013); Banks v. Gonzales, 496 F. Supp. 2d 146, 149 (D.D.C. 2007).
2
  Jenkins mentions having been incarcerated for five years and three months. Pet. ¶ 8. But
combining his initial sentence and his SIS Notice of Action sentence amounts to one year and
eleven months of incarceration. See Gov’t Opp’n Ex A, F.
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          Ordinarily, an individual on supervised release who seeks to challenge the Parole

Commission’s decision must submit an appeal to the National Appeals Board. 28 C.F.R. §§

2.105(g); 2.26. Failure to do so precludes bringing a habeas petition to challenge the Parole

Commission’s decision. Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994) (“A prisoner challenging a

Parole Commission decision is required to exhaust his administrative remedies before seeking

habeas relief.”); King v. Hasty, 154 F. Supp. 2d 396, 400 (E.D.N.Y. 2001) (“A petitioner must

exhaust all available administrative remedies before filing a petition for habeas corpus relief,

including in the parole context.”). Jenkins, however, does not claim to have filed an appeal and

would likely have been precluded from doing so because of his waiver. Jenkins may not sidestep

his waiver of the right to appeal the merits of the Parole Commission’s decision by bringing this

habeas action instead. See Ath v. Chertoff, 227 F. App’x 574, 575 (9th Cir. 2007) (reviewing

habeas petition of immigration detainee, “waiver of the right to [administrative] appeal is a failure

to exhaust administrative remedies” (internal quotation omitted)). Theodoropoulos v. INA, 358

F.3d 162, 169 (2d Cir. 2004) (same). Even to the extent Jenkins could have invoked the exceptions

to waiver in the SIS application, see Gov’t Opp’n Ex. E (SIS Application) (excusing exhaustion

waiver for claims that the Commission “(1) erred in determining [petitioner’s] release date; (2)

included special conditions of supervision that are not supported by [petitioner’s] background or (3)

has erred in applying the rules regarding forfeiture of time on parole”), Jenkins must still properly

invoke that appeal mechanism before proceeding to federal court through a habeas petition.

          III.   Conclusion

          For the foregoing reasons, it is hereby

          ORDERED that [1] Petitioner’s Petition for Writ of Habeas Corpus is DENIED. It is

further

          ORDERED that [2] the Court’s Order to Show Cause is DISCHARGED. It is further

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        ORDERED that the petition and this civil action are DISMISSED.

        This is a final, appealable Order

        SO ORDERED.




                                                        CHRISTOPHER R. COOPER
                                                        United States District Judge

Date:    November 5, 2014




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