                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

TODD EMERSON BAKER,                          )
                                             )
                      Petitioner,            )
                                             )
       v.                                    )               Civil Action No. 14-1456 (CRC)
                                             )
UNITED STATES PAROLE                         )
COMMISSION, et al.,                          )
                                             )
                      Respondents.           )

                                    MEMORANDUM OPINION

       Todd Emerson Baker has been granted parole no less than six times on a single 1997

sentence in the Superior Court of the District of Columbia. Each time, he violated a parole

condition and was sent back to jail. Due to this back and forth, calculating how much time

remains on Baker’s sentence is no small task. In this petition for a writ of habeas corpus, Baker

primarily contends that federal authorities have miscalculated the remaining time, resulting in his

continued incarceration beyond the expiration of his sentence. The Government counters that it

has calculated Baker’s sentence in accordance with all applicable laws and regulations. Upon

review of the parties’ submissions, the Court finds that the Government has accurately calculated

Baker’s sentence and will therefore deny the petition.

I.     Background

       Be forewarned: following the history of Baker’s revolving-door relationship with the

D.C. jail requires a measure of patience.

       A.      The Original Sentence, Probation, and Parole

       Baker pled guilty in District of Columbia Superior Court to destruction of property,

attempted unauthorized use of a vehicle (a misdemeanor), and unauthorized use of a vehicle.

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See Fed. Resp’ts’ Opp’n to Pet’r’s Pet. for a Writ of Habeas Corpus (“Fed. Opp’n”), Ex. 41

(“Erickson Decl.”) ¶ 5. On January 24, 1997, the court initially suspended Baker’s aggregate

sentence of 14 years and 90 days and imposed a three-year term of probation instead. Id. Six

months later, however, Baker’s probation was revoked and the District of Columbia Department

of Corrections (“DOC”) “established a Full Term expiration of sentence date of September 8,

2011.” Id. ¶¶ 6–7. Baker was transferred to federal custody in November 1999 pursuant to the

National Capital Revitalization and Self-Government Improvement Act of 1997, at which point

the Federal Bureau of Prisons (“BOP”) adopted DOC’s sentence computation in all respects

except for adding four days of prior custody credit not already credited by DOC. Id. ¶¶ 8–9; see

id. Ex. 7 at 3. He was first paroled on May 15, 2002 and was to remain under parole supervision

through September 4, 2011, his Full Term Expiration date. See Fed. Opp’n, Ex. 4 at 1. As of

May 15, 2002, 3,399 days remained on his sentence. Erickson Decl. ¶ 10; see id. Ex. 7 at 3.

       B.      The First Parole Violation

       On May 14, 2003, the Commission issued a warrant charging Baker with four violations

of the conditions of his release: use of dangerous and habit-forming drugs, failure to maintain

regular employment, failure to report a change in residence, and failure to submit supervision

reports. Fed. Opp’n, Ex. 5 at 1–2. Baker was returned to BOP custody on June 20, 2003. Id.

Ex. 6 at 1; Erickson Decl. ¶ 11. By the time of his revocation hearing on August 14, 2003,

Baker had been charged with a fifth violation arising from his June 2003 arrest in Prince

George’s County, Maryland on three counts of theft of property valued at less than $500. Id. Ex.

7 at 1–3. Although Baker was found not guilty of these charges, the hearing examiner relied on

Baker’s admission to having entered a nolo contendere plea on one of the three theft counts to

conclude that he had violated the conditions of release. Id. Ex. 7 at 3. On this basis and Baker’s



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admissions to the remaining four charges in the parole violation warrant, the hearing examiner

recommended revocation of parole. See id., Ex. 7 at 2–3. The Commission agreed and ordered

that Baker serve another 10 months in custody. See generally id., Ex. 8–9. None of the time

spent on parole, popularly known as “street time,” was credited against Baker’s outstanding

sentence at the time he was released on parole. Id., Ex. 8 at 1. “The [Commission] instructed the

BOP to compute a sentence of 3,399 days . . . for the remaining time left on [Baker’s] sentence at

the time of his parole, to begin the sentence on the date of [his] arrest.” Baker’s new full term

expiration date was October 8, 2012. Erickson Decl. ¶ 11. Baker was re-paroled on April 2,

2004, leaving 3,111 days on his sentence. Id. ¶ 12. He was ordered to remain under parole

supervision through October 8, 2012. Fed. Opp’n, Ex. 9 at 1.

       C.      The Second Parole Violation

       The Commission issued a second warrant two and a half months after Baker left custody.

See id., Ex. 10 at 1. Baker was charged with failing to report a change of address, failing to

report a change in employment, failing to report to his supervision officer as directed, and failing

to submit supervision reports. Id., Ex. 10 at 1–2. He was arrested on September 7, 2004 and

taken into custody on the warrant. See id., Ex. 11 at 1. Baker took responsibility for each

violation charged, waived his right to a parole revocation hearing, forfeited street time, and

agreed to substance abuse treatment and his return to custody for eight to 12 months. See id., Ex.

11 at 1–2. The Commission ordered that Baker serve eight additional months in custody. See

id., Ex. 12 at 1. “The [Commission] instructed the BOP to compute a sentence of 3,111 days

which accounted for the remaining time left on [Baker’s] sentence at the time of his parole, and

to begin the sentence on the date of [his] arrest” on September 7, 2004. Erickson Decl. ¶ 13. He

received no credit for street time from April 3, 2004 through September 6, 2004 and his new full



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term expiration date was determined to be March 14, 2013. Id.; see id., Ex. 12 at 2.

Accordingly, when Baker was paroled on May 6, 2005, he was to remain under parole

supervision until March 14, 2013. Fed. Opp’n, Ex. 13 at 1. The seven months in prison took

Baker’s remaining sentence down to 2,869 days. Erickson Decl. ¶ 14; see id., Ex. 12 at 2.

       D.      The Third Parole Violation

       On January 13, 2006, the Commission issued another warrant, this one charging Baker

with failure to submit to drug testing, use of dangerous and habit forming drugs, failure to report

to his supervision officer as directed, failure to report a change in residence, and a law violation

arising from his arrest in the District of Columbia on August 18, 2005 on a second degree

burglary charge. Id., Ex. 14 at 1–2. Baker was arrested almost ten months later and received a

probable cause hearing on November 7, 2006. See generally id., Ex. 15, Ex. 16. The

Commission revoked parole and ordered that Baker serve 18 more months in custody. Id., Ex.

17 at 1. He received six months of credit of toward the parole guidelines for time served before

the warrant was executed. Id., Ex. 17 at 1. The Commission instructed the BOP to compute

Baker’s remaining sentence of 2,869 days “to begin . . . on the date of [Baker’s] arrest” on

November 3, 2006 and to exclude street time, from May 7, 2005 through November 2, 2006.

Erickson Decl. ¶ 15; see id., Ex. 13 at 1. His “new Full Term Expiration Date was September

10, 2014.” Id. ¶ 15. Baker was re-paroled a year later, and was to remain under parole

supervision for seven more years. Fed. Opp’n, Ex. 18 at 1. As of November 2, 2007, 2,504 days

remained on his sentence. Erickson Decl. ¶ 16; see id., Ex. 14 at 1.

       E.      The Fourth Parole Violation

       Almost two and a half years passed with no further violations. In April 2009, however,

Baker was charged with failure to maintain regular employment, failure to submit to drug testing,



                                                  4
failure to report to his supervision officer as directed, and a law violation arising from his arrest

in Prince George’s County, Maryland on charges of destruction of property and burglary. Fed.

Opp’n, Ex. 21 at 1–2. Baker was convicted of second degree burglary and was in custody in

Maryland from February 19, 2009 until his transfer to District of Columbia custody on January

28, 2010. See id., Ex. 22 at 2. The Commission revoked parole and ordered that Baker serve

another 16 months of his sentence in custody, beginning on the date of his return from Prince

George’s County. See id., Ex. 23 at 1. Baker received no credit for street time, and thus 2,504

days remained on his term. Id.; Erickson Decl. ¶ 17. His “new Full Term Expiration date was

December 5, 2016.” Id. Baker was re-paroled after four and a half months in D.C. jail. As of

June 18, 2010, over six years—2,362 days—remained until full satisfaction of his sentence.

Erickson Decl. ¶ 18; Fed. Opp’n, Ex. 24 at 1.

       F.      The Fifth Parole Violation

       Baker’s continued drug use, see Fed. Opp’n, Ex. 25, among other violations, prompted

the Commission to issue another warrant on September 9, 2011, id., Ex. 26 at 1–2. He was

arrested a month later and at his probable cause hearing requested placement in a residential drug

treatment program. See id. Ex. 28. The Commission held its proceedings in abeyance pending

Baker’s placement in and completion of a treatment program. Id., Ex. 29–30. He did not

complete the program, however, and the Commission issued a warrant in August 2012 charging

Baker with continued use of dangerous and habit forming drugs, failure to submit to drug testing,

failure to report to his supervision officer as directed, failure to comply with a graduated sanction

(GPS monitoring), failure to report a change in residence, and violation of a special drug




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aftercare condition. 1 Id., Ex. 31 at 1–2. Baker was arrested on September 5, 2012. Id., Ex. 32 at

1. The Commission revoked parole and ordered that Baker serve another 12 months in custody.

Id., Ex. 34 at 1. The Commission “gave [Baker] partial credit for the time he spent on parole

from June 19, 2010, until July 15, 2012, thus reducing the number of days remaining from 2,362

to 1,604.” Erickson Decl. ¶ 19; Fed. Opp’n, Ex. 34 at 1. His new Full Term Expiration Date

was January 25, 2017. Erickson Decl. ¶ 19. Thus, when Baker “was released [on parole] for the

sixth time on September 4, 2013,” id., he had almost three and a half years of parole supervision

ahead of him, Fed. Opp’n, Ex. 35.

       G.      The Sixth and Most Recent Parole Violation

       The Commission issued its most recent parole violation warrant on February 21, 2014,

id., Ex. 36 at 2, and Baker was arrested on July 29, 2014, id., Ex. 37. Baker’s probable cause

hearing was continued twice at Baker’s request. Id., Exs. 38–39. The Commission thereafter

revoked parole, forfeited time spent on parole from January 21, 2014 through July 29, 2014,

placed Baker in the Short-Term Intervention for Success program, and, after he served six

months in custody, directed his re-parole. Pet’r’s Resp. to Fed.’s Opp’n, ECF No. 15 (“Pet’r’s

Opp’n”), Ex. 5 at 1. Baker was released from custody on January 28, 2015.

II.    Analysis

       A District of Columbia prisoner is entitled to habeas relief if he establishes that his

“custody is in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §

2241(c)(3). In contending his detention violated the laws of the United States and the




1
   Baker allegedly left his last known residence on July 17, 2012, one day before he was to
report to the Re-Entry and Sanction Center for substance abuse treatment, and one day after he
failed to report for installation of a GPS device. See Fed. Opp’n, Ex. 31 at 2.

                                                 6
Constitution, Baker disputes practically every action by every respondent as it relates to the

computation of his sentence. See generally Pet’r’s Opp’n.

       First, Baker faults the Government for aggregating his misdemeanor sentence with his

felony sentences. See, e.g., Pet. at 2; Pet’r’s Opp’n at 2–3. According to Baker, the BOP cannot

take individuals who commit misdemeanors into custody. See Pet’r’s Opp’n at 5–6, 12–14. But

as was the case even before the Revitalization Act, offenders under District of Columbia law are

committed to the custody of the Attorney General of the United States or her designee, and she

“shall designate the places of confinements where the sentences of all such persons shall be

served.” D.C. Code § 24-201.26. The law changed in August 2000—when it limited BOP to

taking felons into custody—but under the law in effect in 1999, the District of Columbia Code

permitted BOP to take Baker into custody for a misdemeanor. See Erickson Decl. ¶ 22

(explaining that because “the Sentencing Reform Amendment Act did not become effective until

August 2000 and [Baker’s] misdemeanor sentence was imposed prior to August 2000,” Baker’s

sentences were “governed by the Omnibus Criminal Justice Reform Amendment Act, which

allowed for misdemeanors to be combined with other misdemeanor[] and felony sentences”).

       Second, Baker claims that he has not received credit for the time he was in custody in

Prince George’s County, Maryland. See Pet. at 3; Pet’r’s Opp’n at 8–9, 14–15. But he is not

entitled to such credit. Under District of Columbia law, a prisoner is given credit for time spent

in custody “as a result of the offense for which the sentence is imposed.” D.C. Code § 24-221.03

(previous codified at D.C. Code § 24-431) (emphasis added). The time he spent in the custody

of Prince George’s County is attributable to his theft and burglary in that jurisdiction, not the

offenses for which sentences were imposed by the District of Columbia Superior Court.




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       Third, Baker argues that federal authorities erred by failing to credit street time. See Pet.

at 8; Pet’r’s Opp’n at 10–11, 21. Yet under District of Columbia law in effect at the time, Baker

was not entitled to credit for street time because his parole had been revoked. D.C. Code § 24-

406(a); see also U.S. Parole Comm’n v. Noble, 693 A.2d 1084, 1085 (D.C. 1997), op. adopted,

711 A.2d 85 (D.C. 1998) (en banc); see also Jones v. Bureau of Prisons, No. 02-5054, 2002 WL

31189792, at *1 (D.C. Cir. Oct. 2, 2002) (“Under District of Columbia law, appellant cannot

receive credit for time on parole, commonly known as ‘street time,’ after his parole has been

revoked.”). Although District of Columbia law has since changed—such that a prisoner may get

credit for street time after his parole has been revoked under certain circumstances—the

Commission may still order that a parolee not receive credit for the period of time that “a parolee

intentionally refuses or fails to respond to any reasonable request, order, summons, or warrant of

the Commission or any member or agent of the Commission[.]” D.C. Code § 24-406(c). These

provisions took effect on May 20, 2009 and do not apply retroactively. Id. § 24-406(d) (limiting

application “only to any period of parole that is being served on or after May 20, 2009”); see

Ferguson v. Wainwright, 849 F. Supp. 2d 1, 5 (D.D.C. 2012). Thus, Baker’s sentence has not

been increased due to the Government failing to credit his street time, “but rather, the

Commission rescinded credit towards completion of that sentence for time spent on parole, as

required by D.C. law.” Campbell v. U.S. Parole Comm’n, 563 F. Supp. 2d 23, 25 (D.D.C.

2008). Accordingly, Baker has not been improperly denied street time as he alleges, and the

forfeiture of his street time does not violate the Constitution. See Brown v. U.S. Parole

Comm’n, 713 F. Supp. 2d 11, 14 (D.D.C. 2010) (citing Davis v. Moore, 772 A.2d 204, 209 (D.C.

2001) (en banc)) (“Forfeiture of street time violates neither the Double Jeopardy Clause nor the

Ex Post Facto Clause of the United States Constitution.”).



                                                 8
       Fourth, Baker contends that he has been denied other credit towards completion of his

sentence. See Pet. at 3. For example, he claims to have earned educational good time credit “by

completing various education and drug treatment programs.” Pet’r’s Opp’n at 7–8. The

Government demonstrates that Baker did in fact receive credit for superior program

achievement. The Government also shows that “[Baker] was awarded 108 days of extra good

time credit for educational programming from the time period of his sentence computation began

on June 30, 1997, until his first release via parole on May 15, 2002.” Erickson Decl. ¶ 21; see

id., Ex. 17 (Sentencing Monitoring Good Time Data as of 05-15-2002). But because the statute

authorizing institutional good time credit for District of Columbia Code offenders was repealed

prior to Baker’s convictions, see Glascoe v. United States, 358 F.3d 967, 969 (D.C. Cir. 2004)

(noting repeal of Good Time Credit Act in 1994), he is not entitled to institutional good time

credit, see Erickson Decl. ¶ 20, and he offers no support for his contention that he has earned

additional credit towards service of his sentence. Furthermore, any credit Baker has earned only

affects the computation of his parole eligibility date and mandatory parole release date; it would

not advance the full term expiration date of his sentence. See D.C. Code §§ 24-201.29, 24-

221.01; see also Ramsey v. Faust, 943 F. Supp. 2d 77, 82 (D.D.C. 2013).

       Fifth, Baker suggests that federal authorities “violated the Ex Post Facto Clause” by

failing to apply “regulations in effect at the time [he] was convicted,” and thereby “increased

[his] sentence in various ways.” Pet. at 3. In addition, he claims that the Government violated

his rights to due process and equal protection because they selected a “randomly chosen regime

that increases [his] sentence” rather than “the 1987 regime.” Id. at 4. The Court presumes that

Baker’s references to regulations in effect at the time he was convicted and to the “1987 regime”

are to regulations developed and published by the former District of Columbia Board of Parole.



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See D.C. Mun. Regs. tit. 28, § 100 et seq. (1987) (repealed Aug. 5, 2000). The United States

Constitution prohibits any State from passing an “ex post facto Law.” U.S. Const. art. 1, § 9,

cl.3. The clause “is aimed at laws that ‘retroactively alter the definition of crimes or increase the

punishment for criminal acts.’” Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 504 (1995)

(quoting Collins v. Youngblood, 497 U.S. 31, 43 (1990)). “Retroactive changes in laws

governing parole of prisoners, in some instances, may be violative of this precept,” if, for

example, the law as applied to a particular prisoner’s sentence “created a significant risk of

increasing . . . punishment.” Garner v. Jones, 529 U.S. 244, 250, 255 (2000). A successful Ex

Post Facto claim requires that a petitioner show that he has faced a substantial risk of increased

punishment by application of the Commission’s regulations. See Richardson v. Pennsylvania

Bd. of Prob. & Parole, 423 F.3d 282, 291-94 (3d Cir. 2005). Baker makes no such showing; he

merely speculates as to the adverse impact of the Commission’s regulations. Moreover,

controlling precedent forecloses Baker’s argument that revocation of street time can violate the

Ex Post Facto clause, as revoking street time does not constitute increasing a sentence. See

Campbell, 563 F. Supp. 2d at 26 (rejecting argument that revocation of street time violates the

Ex Post Facto and Due Process Clauses of the United States Constitution).




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III.   Conclusion

       Because Baker does not provide facts to establish that his custody is unlawful, the Court

will deny the habeas petition and dismiss this action. 2 An Order accompanies this Memorandum

Opinion.




                                                    _________________________
                                                    CHRISTOPHER R. COOPER
                                                    United States District Judge
DATE: June 2, 2015




2
  Baker’s “Motion to Include Argument in Mooted Complaint,” ECF No. 11, will also be denied.
The Court assumes that Baker is referring to a prior habeas action brought in the United States
District Court for the Eastern District of North Carolina, which was dismissed as moot upon his
release from federal custody. See Baker v. Tripp, No. 5:13-hc-02030 (E.D.N.C. Nov. 21, 2013).
Baker may not litigate issues already resolved in prior cases.
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