Lorando v. Walden ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DUNCAN LORANDO, )
)
Petitioner, )
)
v. ) Civil Action No. 08-10
)
STANLEY WALDREN, Warden, et al., )
)
Respondents. )
MEMORANDUM OPINION
Petitioner Duncan Lorando, currently on parole, filed this pro se petition for habeas
corpus relief while he was confined in the District of Columbia’s Central Detention Facility
(“CDF”). The United States Parole Commission (“USPC”) and the CDF Warden have each
responded to an Order to Show Cause. For the reasons explained here, the petition for relief will
be denied.
I. BACKGROUND
Sentenced in 1986 to a term of 30 years and 60 days for an offense committed in 1985,
the petitioner has been paroled more than once, and his parole has been revoked more than once.
See U.S. Parole Commission’s Opposition to Petitioner’s Petition for a Writ of Habeas Corpus
(“Opp’n”) at 1-3 & Exhibit (“Ex.”) A. The most recent revocation was triggered when the
petitioner was arrested on May 14, 2007, pursuant to a parole violation warrant for allegedly
possessing cocaine with intent to distribute. Id. at 2. The United States Marshal Service tried to
promptly notify the USPC of the petitioner’s arrest, but through some undiscovered error the
attempted communication failed and the USPC did not receive effective notice of the petitioner’s
arrest until August 29, 2007. Id. A probable cause hearing was held two days later, id., and the
petitioner’s parole was revoked on October 31, 2007, id. at 3. In making the revocation decision,
the USPC found that the petitioner had committed the offense of possession of crack cocaine, not
the alleged distribution offense, id. at 2-3, and ultimately based the petitioner’s salient factor
score on five, not six, prior convictions, id. at 5-6. On the petitioner’s administrative appeal, the
record was corrected to reflect that the USPC had, in fact, based its revocation on a finding that
the petitioner had possessed crack cocaine. Id. at 4. The petitioner’s administrative appeal claim
with respect to the delayed probable cause hearing was denied because he showed no prejudice
resulting from the delay. Id. The petitioner was released on parole on July 11, 2008, and his
sentence expiration date is September 2, 2025. Id.
The petitioner challenges the loss of good time credits he earned while in custody prior to
his most recent revocation, and in turn, the calculation of the date on which his sentence expires.
See Petition for Writ of Habeas Corpus by a Person in Custody in the District of Columbia
(“Pet.”) at 5. In addition, he contends that his rights were violated when he was not afforded a
probable cause hearing within five days after he was taken into custody on May 14, 2007. Id.
at 6. He also maintains that the most recent parole revocation decision was based on information
that should not have been considered because it had been expunged from his record. Id. at 5.
II. DISCUSSION
A petition for a writ of habeas corpus allows a petitioner to challenge restrictions on his
freedom that are in “violation of the Constitution or laws or treaties of the United States.” 28
U.S.C. § 2241(c)(3) (2006). In such a proceeding, the government bears the initial burden of
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showing that its restrictions on the petitioner’s liberty are lawful. See Boumediene v. Bush,
__ U.S. __ , __ ,128 S. Ct. 2229, 2270 (2006); Hamdi v. Rumsfeld, 542 U.S. 507, 533-34 (2004).
Good time credits operate to allow a prisoner to become eligible for release earlier than
otherwise authorized by the sentence he received, to advance an inmate’s eligibility date for
release on parole and to decrease an inmate’s mandatory release date. See D.C. Code § 24-
201.29 (repealed Aug. 20, 1994) (although repealed, this statute governs this case because it was
in effect on the date of the petitioner’s 1985 offense and 1986 sentence); see also 28 C.F.R.
§ 2.35(b) (2008). Once a prisoner is released to parole, however, the usefulness of his earned
good time credits is exhausted. 28 C.F.R. § 2.35(b). Thus, if after release, the release is revoked,
the acquisition of good time credit to advance a release date begins anew. See D.C. Code § 24-
406 (2001). In other words, good time credits do not survive a prisoner’s release. See also Jones
v. Clemmer, 163 F.2d 852, 854 (D.C. Cir. 1947) (determining that good time credits are forfeited
by violating parole); Bates v. Rivers, 323 F.2d 311, 312 (D.C. Cir. 1963) (same). Moreover,
good time credits do not operate to shorten the term of the sentence originally imposed by the
sentencing court. Bates, 323 F.2d at 311-12. In addition, it is well-settled that if parole is
revoked, the time a parolee was under parole supervision does not count toward completion of
sentence of imprisonment imposed. See D.C. Code § 24-406(a); see also Davis v. Moore, 772
A.2d 204, 209 (D.C. 2001) (forfeiture of street time credit for District of Columbia offenders
does not violate the ex post facto or due process clauses of the Constitution). In this case, the
USPC has shown that it has acted in accordance with the law in its treatment of petitioner’s good
time credits and time spent under supervision on parole, and that it has correctly calculated the
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petitioner’s sentence expiration date. Therefore, the petition for relief on that basis will be
denied.
Turning to the petitioner’s next argument, it is undisputed that the USPC did not receive
timely notice of the petitioner’s arrest on May 14, 2007, and did not hold a probable cause until
August 31, 2007, when the petitioner was heard and probable cause was found. Opp’n at 2. The
petitioner has not identified any prejudice he sustained as a result of the delayed hearing and has
not identified what relief he is seeking due to this delay. To the extent that he seeks release from
custody, his request has been mooted by his reparole, and to the extent he seeks some other relief,
because the relief is unspecified and there is no prejudice apparent on this record, the petition for
relief on this basis will also be denied.
Finally, the petitioner asserts that in reaching its October 31, 2007 revocation decision,
the USPC wrongfully considered information that had been expunged from the petitioner’s
record. Pet. at 5. However, the petitioner does not indicate what information was allegedly
considered in error. The USPC has conjectured that petitioner is referring to the number of prior
convictions used to calculate the petitioner’s salient factor score. On this matter, the USPC
concluded that the petitioner had five, not six, prior convictions. Opp’n at 5-6. However, even if
the petitioner had only four prior convictions, the salient factor score would have been identical
because four or more prior convictions are accorded the same weight. See Opp’n, Ex. D at 3. On
this record and in the absence of greater specificity from the petitioner, the USPC has
demonstrated that the information it considered was properly considered, the petitioner had an
adequate opportunity to challenge the information, and the petitioner was not prejudiced by the
information’s consideration. In any even, as already noted, to the extent that the petitioner seeks
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release, his request has been mooted by his reparole, and to the extent he seeks some other form
of relief, he has not identified it for the Court. Therefore, the petition for relief will be denied
with respect to this claim as well.
III. CONCLUSION
The record before the Court shows that the USPC did not err in its application of the
petitioner’s earned good time credits or the calculation of the expiration of the petitioner’s
sentence. The record also fails to show that the petitioner suffered any prejudice resulting from
the USPC’s failure to conduct a timely probable cause hearing or from its conclusion, for
purposes of calculating his salient factor score, that the petitioner had five prior convictions.
Therefore, the petition for relief based on this final argument will also be denied.
A separate order accompanies this memorandum opinion.
/s/
REGGIE B. WALTON
Date: June 29, 2009 United States District Judge
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