                     UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF COLUMBIA

                                          )
HARRY J. BENNETT,                         )
                                          )
       Petitioner,                        )
                                          )
             v.                           )   Civil Action No. 13-1809 (KBJ)
                                          )
UNITED STATES                             )
PAROLE COMM ISSION,                       )
                                          )
       Respondent.                        )
                                          )


                           MEMORANDUM OPINION

       In this action for a writ of habeas corpus filed in November 2013,

Petitioner, a D.C. Code felon, claims that he was denied due process during

parole revocation proceedings because the “warrant issued was not under oath

and supported by affirmation as required under the 4 t h Amendment.” (Pet. at 5.)

In addition, Petitioner claims that his custody is “illegal” because the case

supporting the parole violation “was dismissed and no probable cause [was]

found,” and because his sentence has expired. (Id.)

       In response to the court’s order to show cause why the writ should not

issue, Respondent United States Parole Commission (“USPC”) asserts that no

due process violation has occurred and that Petitioner’s incarceration is legal

insofar as he has had his parole revoked seven times and has not completed his

sentence. (USPC’s Opp’n to Pet’r’s Pet. for a Writ of Habeas Corpus, ECF No.

7.)   On March 5, 2014, Petitioner was advised about repl ying to Respondent’s

opposition and the possibilit y of a summary dismissal if he failed to repl y b y

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April 15, 2014. (Order, ECF No. 8.)     Petitioner was directed specificall y to the

following provision governing habeas actions:

              The allegations of a return to the writ of   habeas corpus or
          of an answer to an order to show cause in         a habeas corpus
          proceeding, if not [responded to], shall be      accepted as true
          except to the extent that the judge finds from   the evidence that
          they are not true.

28 U.S.C. § 2248. Petitioner has neither replied to Respondent’s opposition nor

sought additional time to do so. Based on Respondent’s documented opposition,

the Court finds no grounds for issuing the writ and, therefore, will deny the

petition and dismiss the case.

                                 BACKGROUND

      Petitioner is serving a 30-year sentence imposed in June 1986 b y the

Superior Court of the District of Columbia for voluntary manslaughter and

robbery. Petitioner was first released to parole supervision in February 1998

with an expiration date of June 9, 2016. (USPC’s Opp’n, Ex. 2.) The instant

petition is based on events that ensued after petitioner’s seventh release to

parole.

      Petitioner was released to parole on February 22, 2012, with an expiration

date of May 23, 2023 (Id., Ex. 14.) On August 20, 2012, Petitioner’s

Communit y Supervision Officer requested issuance of a parole violator warrant

based on Petitioner’s failure to report for supervision and other administrative

violations (Ex. 15). The USPC issued the warrant on September 12, 2012,

charging Petitioner with “Failure to Report to Supervising Officer as Directed”

and “Violation of Special Condition (Drug Aftercare)” (Ex.19). On April 20,



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2013, Petitioner was arrested in the District of Columbia and charged in the

Superior Court of the District of Columbia with unauthorized use of a vehicle

(“criminal charge”) (Ex. 20). As a result, the USPC supplemented the violator

warrant on April 30, 2013, to include a law violation charge (Ex.21). The

United States Marshal executed the violator warrant by arresting Petitioner on

May 17, 2013 (Ex.22), and the USPC found probable cause to detain Petitioner

following a hearing on May 28, 2013, at which Petitioner was represented by

counsel from the District of Columbia’s Public Defender Service (Ex. 23).

      The Superior Court dismissed the criminal charge on Jul y 5, 2013 (Ex.

24), and Petitioner filed this case from the District of Columbia’s Correctional

Treatment Facilit y on November 19, 2013. Following a parole revocation

hearing on February 6, 2014 (Ex. 25), the USPC adopted the hearing examiner’s

recommendation to revoke Petitioner’s parole on February 12, 2014 without

rel ying on the law violation charge (Ex. 26). Petitioner has not sought to amend

the Petition to challenge the outcome of the latter proceedings.

                                    ANALYSIS

      District of Columbia prisoners are entitled to habeas corpus relief if they

establish that their “custod y is in violation of the Constitution or laws or

treaties of the United States.” 28 U.S.C. § 2241(c)(3).    A parolee has a Fifth

Amendment libert y interest in maintaining his conditional freedom and therefore

is entitled to due process prior to revocation. See Ellis v. District of Columbia,

84 F.3d 1413,1420 (D.C. Cir.1996) (citing Morrissey v. Brewer, 408 U.S. 471

(1972)).   That entitlement, however, is limited to notice and an opportunit y to



                                          3
be heard in a meaningful and reasonabl y timel y manner, see id. at 1421-24

(discussing Morrissey’s standards), and to a decision that is neither “totall y

lacking in evidentiary support [n]or [] so irrational as to be fundamentall y

unfair.” Duckett v. Quick, 282 F.3d 844, 847 (D.C. Cir. 2002) (citations

omitted).

      As to the specific claims raised in the instant Petition, Respondent argues

correctl y that the Fourth Amendment’s oath or affirmation clause does not

appl y to the administrative warrants the USPC is authorized to issue upon a

parole officer’s representation that a parole violation has occurred. Resp’t’s

Mem. at 4-5 (citing, inter alia, United States v. Garcia–Avalino, 444 F.3d 444,

447 (5th Cir. 2006) (concluding that “[g]iven the relaxed constitutional norms

that appl y in revocation hearings, a warrant for the arrest of a supervised

releasee need not compl y with the Oath or affirmation clause of the Fourth

Amendment.”); United States v. Collazo–Castro, 660 F.3d 516 (1st Cir. 2011)

(holding that the Fourth Amendment does not require a warrant based on an oath

or affirmation to revoke an individual on supervised release); see generally

Bethea v. U.S. Parole Comm’n, 751 F. Supp. 2d 83 (D.D.C. 2010) (discussing

the USPC’s paroling authorit y over D.C. prisoners). This is so because parole

proceedings are "separate administrative proceeding[s] at which the [parolee]

does not possess the same rights as a criminal defendant at trial." Maddox v.

Elzie, 238 F.3d 437, 445 (D.C. Cir. 2001); see Hardy v. United States, 578 A.2d

178, 181 (D.C. 1990) (noting that "jeopardy does not attach in probation or

parole revocation proceedings because they are not new criminal prosecutions



                                         4
but rather continuations of the original prosecutions which resulted in probation

or parole.") (Internal citations omitted.); see also Hyser v. Reed, 318 F.2d 225

(D.C. Cir. 1963) (observing that the powers of the then-Parole Board “to issue

warrants or effect an arrest for retaking” are derived from Congress, not the

Constitution).

      Petitioner’s claim that his sentence has expired is belied by the record.

The record shows that when the violator warrant underl ying this action was

issued on February 12, 2012, Petitioner’s sentence was not due to expire until

May 2023 because, in accordance with District of Columbia law, the credit for

time Petitioner had served while on parole was rescinded upon each parole

revocation. See Resp’t’s Mem. at 5-9; Bethea, 751 F. Supp. 2d at 85, n.3 (“In

other words, petitioner forfeited ‘street time’ upon each parole revocation, and

none of the time spent on parole is credited toward service of the underl ying

sentence.”) (citing D.C. Code § 24-206 (a)).

                                    CONCLUSION

      For the foregoing reasons, the Court accepts as true the USPC’s unrefuted

response to the show cause order and agrees that the petition for a writ of

habeas corpus should be denied. A separate order accompanies this

Memorandum Opinion.



                                            Ketanji Brown Jackson
                                            Ketanji Brown Jackson
                                            United States District Judge


DATE: May 12, 2014

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