Cutchin v. United States Parole Commission , 72 F. Supp. 3d 154 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
DEMANNE CUTCHIN, )
)
Petitioner, )
)
v. ) Civil Action No. 13-1814 (RBW)
)
U.S. PAROLE COMMISSION, )
)
Respondent. )
_________________________________________ )
MEMORANDUM OPINION
On November 19, 2013, Demanne Cutchin (“the petitioner”) filed a petition for a writ of
habeas corpus under 28 U.S.C. § 2241, and on January 28, 2014, the United States Parole
Commission (“the Commission”) filed its response. For the reasons discussed below, the
petition will be denied. 1
I. BACKGROUND
The petitioner challenges the calculation of his sentence. See Petition (“Pet.”) ¶ 5. He
contends that because he has not received proper credit toward service of his sentences, he
should have been released from custody in April 2010. See id. ¶ 13 (Ground One). In order to
consider the petitioner’s claim, the Court first recounts his criminal convictions and multiple
parole revocations.
On November 24, 1992, for the petitioner’s conviction of possession of a firearm during a
crime of violence, the Superior Court of the District of Columbia (“Superior Court”) imposed a
1
The petitioner’s Motion for Summary Judgment will also be denied. The Court finds that the
petitioner has been awarded all the credit he is entitled to receive. The alleged denial of credit
therefore does not violate the petitioner’s rights to due process and equal protection.
1
prison sentence of five to 15 years, and for his conviction of receiving stolen property, it imposed
a one to three year prison sentence. U.S. Parole Commission’s Opposition to the Petitioner’s
Petition for a Writ of Habeas Corpus (“Resp’t’s Opp’n”), Exhibit (“Ex.”) 1 (Face Sheet
regarding Case Nos. F-3508-92D and F-5547-92C). The petitioner’s aggregate maximum term
of imprisonment was 18 years. See Resp’t’s Opp’n at 2.
The petitioner was first paroled on April 10, 1998, and he was to have remained under
parole supervision until May 28, 2010. Id., Ex. 2 (Certificate of Parole dated March 2, 1998).
The Commission revoked the petitioner’s parole on August 21, 1998. See id., Ex. 3 (D.C.
Reconsideration Hearing dated January 11, 1999) at 1; see also id., Ex. 36 (Declaration of
Andrew Roush (“Roush Decl.”)) ¶ 9. It also set August 20, 1999, as the effective date for his re-
parole. Id., Ex. 4 (Notice of Action dated February 10, 1999) at 1. The petitioner’s parole was
delayed by 30 days to September 20, 1999, id., Ex. 5 (Notice of Action dated September 17,
1999), and upon his release, the petitioner was to remain under supervision until October 10,
2010, id., Ex. 6 (Certificate of Parole dated September 21, 1999) at 1.
On September 12, 2000, the petitioner was charged with violating four conditions of his
parole: using dangerous and habit-forming drugs, failing to report for drug testing, failing to
report to his supervision officer as directed, and failing to report a change of residence. Id., Ex. 7
(Warrant Application dated September 12, 2000) at 1. The Commission issued a parole violation
warrant and the warrant was executed on November 29, 2000. Id., Ex. 9 (Revocation Hearing
Summary dated April 29, 2001) at 1. Subsequently, on January 11, 2001, the petitioner was
charged with another criminal offense upon his arrest on November 29, 2000, for possession
with intent to distribute heroin. Id., Ex. 8 (Supplement to Warrant Application dated September
12, 2000). The petitioner’s revocation hearing took place on April 20, 2001, id., Ex. 9 at 1,
2
resulting in the revocation of his parole and forfeiture of his street time. 2 Id., Ex. 10 (Notice of
Action dated June 15, 2001) at 1. The Commission initially set May 29, 2003, as the date for the
petitioner’s presumptive parole release. Id., Ex. 10 at 1. After two adjustments, see id., Exs. 11-
12 (Notices of Action dated February 19, 2002 and April 9, 2002, respectively), the petitioner
was re-paroled on May 14, 2002. Id., Ex. 13 (Certificate of Parole dated May 15, 2002) at 1.
The petitioner was to remain under parole supervision until July 9, 2013. Id., Ex. 13 at 1.
On November 24, 2003, the petitioner was charged with three violations of the conditions
of his parole: using dangerous and habit-forming drugs, failing to submit to drug testing, and
failing to report to his supervision officer as directed. Id., Ex. 14 (Warrant Application dated
November 24, 2003) at 1-2. The Commission issued its warrant on November 24, 2003. Id., Ex.
14 at 2. It later charged the petitioner with another parole violation arising from his arrest and
conviction for escape from a police officer. 3 See id., Exs. 15-16 (Supplements dated January 12,
2004 and March 25, 2005, respectively).
The Commission’s November 24, 2003 warrant was executed on October 10, 2005, and
the petitioner’s revocation hearing was held on December 14, 2005. Id., Ex. 17 (Hearing
Summary dated December 14, 2005) at 1. The Commission revoked the petitioner’s parole,
forfeited his street time, and set April 25, 2006, as the petitioner’s re-parole date. Id., Ex. 18
(Notice of Action dated January 5, 2006) at 1. Shortly after his re-parole, however, the petitioner
2
The term “street time” refers to the petitioner’s “time on the street (and not in prison) while on
parole . . . .” Washington v. U.S. Parole Comm’n, 859 F. Supp. 2d 21, 24 (D.D.C. 2012).
3
“On 12/26/2003, the [petitioner] was detained based on a parole violation warrant. While
being transported to the police station, [he] kicked the passenger door open and fled from the
officer’s vehicle. [He] was apprehended [and] arrested . . . for [escape from a police officer] on
12/26/2003.” Resp’t’s Opp’n, Ex. 15. The petitioner was convicted of this offense, and the
Superior Court imposed a sentence of 24 months’ incarceration followed by a term of supervised
release. Id., Ex. 16.
3
was charged with four more violations of the terms of his release: using dangerous and habit-
forming drugs, failing to submit to drug testing, failing to complete a drug treatment program,
and failing to report to his supervision officer as directed. Id., Ex. 19 (Warrant Application dated
August 7, 2006) at 1-2. A hearing examiner found probable cause that the petitioner committed
the alleged violations. See generally id., Ex. 20 (D.C. Probable Cause Hearing Digest dated
August 29, 2006) at 2-4. In lieu of a revocation hearing, on October 25, 2006, the petitioner
accepted the Commission’s expedited revocation proposal. Id., Ex. 21 (Response to Expedited
Revocation Proposal). Accordingly, the Commission revoked the petitioner’s parole, forfeited
his street time, and set a presumptive parole date of September 21, 2007. Id., Ex. 22 (Notice of
Action dated November 1, 2006) at 1.
When the petitioner was re-paroled on September 21, 2007, he was to remain under
supervision until September 8, 2015. Id., Ex. 23 (Certificate of Parole dated September 21,
2007) at 1. Once again, the Commission issued a violation warrant not only for the petitioner’s
continued use of dangerous and habit-forming drugs, failure to submit to drug testing, and failure
to report to his supervision officer as directed, but also for his failure to complete any one of
three drug treatment programs to which he had been referred. Id., Ex. 24 (Warrant Application
dated April 7, 2008) at 1-2. After execution of the warrant on June 9, 2008 and a parole
revocation hearing on July 17, 2008, see id., Ex. 25 (Hearing Summary dated July 17, 2008) at 1,
the Commission again revoked the petitioner’s parole, forfeited his street time, and set a
presumptive re-parole date of October 9, 2009, id., Ex. 26 (Notice of Action dated July 30, 2008)
at 1.
At the time of the petitioner’s parole release on October 9, 2009, he was to remain under
supervision through May 3, 2016. Id., Ex. 27 (Certificate of Parole dated September 11, 2009) at
4
1. Long before that date, however, the petitioner was charged with four more violations of the
conditions of parole: use of dangerous and habit-forming drugs, failure to submit to drug testing,
failure to report to his supervision officer as directed, and failure to complete a drug treatment
program. Id., Ex. 28 (Warrant Application dated April 1, 2010) at 2. Notwithstanding a hearing
examiner’s probable cause findings, see id., Ex. 29 (D.C. Probable Cause Hearing Digest dated
October 19, 2010) at 2-4, the Commission “terminate[d] the revocation process and release[d]”
the petitioner from custody resulting from the April 1, 2010 warrant, because the petitioner had
successfully completed the Secure Residential Treatment Program, id., Ex. 30 (Notice of Action
dated May 9, 2011). This success was short lived, however.
On April 11, 2012, the Commission issued another parole violation warrant on charges
that he again used dangerous and habit-forming drugs, failed to submit to drug testing, failed to
report to his supervision officer as directed, and failed to participate in outpatient drug treatment
programs. Id., Ex. 31 (Warrant Application dated April 11, 2012) at 2. In addition, the
petitioner was arrested on January 29, 2013 and charged with assault with a dangerous weapon,
being a felon in possession of a firearm, carrying a pistol without a license, possession of
unregistered ammunition, possession of an unregistered firearm, fare evasion, and attempting to
flee from a law enforcement officer. Id., Ex. 32 (Supplement to Warrant Application dated April
11, 2012). The petitioner was subsequently indicted on charges of carrying a pistol (outside a
home or place of business), unlawful possession of a firearm, possession of an unregistered
firearm, and unlawful possession of ammunition. Id., Ex. 34 (grand jury indictment). A
Superior Court jury ultimately found him guilty on all charges. See id., Ex. 33 (docket sheet for
Case No. 2013 CF2 001496) at 2. The Commission’s April 11, 2012 warrant has been lodged
against the petitioner as a detainer. Id., Ex. 35 (Inmate Record) at 2.
5
II. DISCUSSION
A. Good Time Credit
The petitioner asserts that he has not received good time credit towards service of his
sentences. Pet. ¶ 13 (Grounds One and Two). Had good time credit been applied correctly, he
argues, his sentences would have expired, see id. (Ground One), and his immediate release from
custody would be warranted. The petitioner is mistaken.
The petitioner has been awarded the good time credit he is entitled to receive. See
Resp’t’s Opp’n, Roush Decl., Attachment (“Attach.”) 10 (computing good time credit beginning
October 10, 2005), 13 (computing good time credit beginning August 24, 2006) & 16
(computing good time credit beginning June 9, 2008). Good time credit would have been
applied to “[his] minimum term of imprisonment to determine the date of eligibility for release
on parole[,] and to [his] maximum term of imprisonment to determine the date when release on
parole becomes mandatory.” D.C. Code § 24-201.29(b) (repealed Aug. 20, 1994). Its
application “neither advance[d] his full-term date nor otherwise hasten[ed] the expiration of his
maximum sentence,” Ramsey v. Faust, 943 F. Supp. 2d 77, 82 (D.D.C. 2013), but instead it
would have made him eligible for parole release “earlier than otherwise authorized by the
sentence he received,” id. (citing Lorando v. Waldren, 629 F. Supp. 2d 60, 61 (D.D.C. 2009)
(additional citations omitted). The petitioner’s good time credit did not accumulate as it was
forfeited upon each revocation of parole. And every time the petitioner was returned to custody,
he was required to “serve the remainder of the sentence originally imposed[,] less any
commutation for good conduct which may be earned by him after his return to custody.” D.C.
Code § 24-406(a) (emphasis added).
6
B. Jail Credit
The petitioner contends that he was denied credit for time spent in custody from May 5,
1992 through November 30, 1992, and from August 1998 through October 1999. Pet. ¶ 13
(Ground Three). Because “[t]here are no records available that indicate [the petitioner] was in
custody from May 5, 1992, to May 28, 1992, [he] was not awarded jail credit for this time
period.” Resp’t’s Opp’n, Rouch Decl. ¶ 6 & Attach. 1 (Inmate Record) at 3. He had received
jail credit from May 29, 1992 through November 23, 1992. Id., Roush Decl., Attach. 2 (Face
Sheet). The respondent’s declarant further states that the petitioner “received appropriate jail
credit for time spent in custody from August 1998 to October 1999.” Id., Roush Decl. ¶ 11.
When the Superior Court imposed sentence on November 24, 1992, the petitioner’s
expiration full term date (“EFT”) was May 28, 2010. Id., Roush Decl. ¶ 5 & Attach. 2 (Face
Sheet). When the petitioner was paroled on April 10, 1998, 4,431 days of his sentence remained.
Id., Roush Decl. ¶¶ 7-8 & Attach. 3 (Independent Sentence Computation). When the petitioner’s
parole was revoked on August 21, 1998, 4,431 days of his sentence still remained, and his EFT
at that time was October 7, 2010. Id., Roush Decl. ¶ 9 & Attach. 4 (Independent Sentence
Computation). When the petitioner was re-paroled on September 21, 1999, 4,034 days remained
until his EFT. Id., Roush Decl., Attach. 5 (Independent Sentence Computation). Thus, the
respondent has demonstrated that the petitioner received credit for his time in custody from
August 21, 1998, the day his parole was revoked, through his re-parole date on September 21,
1999.
7
C. Street Time
The petitioner asserts that he has not received credit for street time. Pet. ¶ 13 (Ground
Four). Under District of Columbia Law, because the petitioner’s parole had been revoked, he is
not entitled to credit for street time, as the governing statute provides that:
If the order of parole shall be revoked, the prisoner, unless
subsequently reparoled, shall serve the remainder of the sentence
originally imposed less any commutation for good conduct which
may be earned by him after his return to custody. For the purpose
of computing commutation for good conduct, the remainder of the
sentence originally imposed shall be considered as a new sentence.
D.C. Code § 24-406(a); see 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.”). 4 Thus, the petitioner was not improperly denied street time credit as he alleges.
III. CONCLUSION
The Court concludes that the petitioner has received the good time credit and jail credit
he is entitled to receive, and that his street time properly was forfeited upon the revocation of his
parole. The petition for a writ of habeas corpus therefore will be denied. An Order accompanies
this Memorandum Opinion.
DATE: October 31, 2014 /s/
REGGIE B. WALTON
United States District Judge
4
District of Columbia law since has changed, such that a prisoner may get credit for street time
under certain circumstances. See D.C. Code § 24-406(c). These provisions, which took effect
on May 20, 2009, do not apply retroactively, however, and the new law does not affect the
petitioner’s revocations in 1998, 2001, 2006 and 2008. 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).
8