Bailey v. Fulwood , 874 F. Supp. 2d 1 ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________
)
SHAVONNE BAILEY, )
)
Petitioner, )
)
v. ) Civil Action No. 11-1818 (BAH)
)
ISAAC FULWOOD, JR., )
)
Respondent. )
___________________________________ )
MEMORANDUM OPINION
On October 13, 2011, Shavonne Bailey (“petitioner”) filed a petition for a writ of habeas
corpus. 1 The Court issued an order to show cause on March 2, 2012, and the United States
Parole Commission (“Commission”) filed its response on March 15, 2012. For the reasons
discussed below, the Court will deny the petition and dismiss this action.
I. BACKGROUND
The petitioner began a five-year term of supervised release on September 29, 2006. See
United States Parole Commission’s Opposition to Petitioner’s Petition for a Writ of Habeas
Corpus (“USPC Opp’n”), Ex. C (Certificate of Supervised Release). While under supervision,
she was charged with possession with intent to distribute cocaine, an offense for which she was
convicted and sentenced on November 5, 2010 in the Superior Court of the District of Columbia.
1
At that time, petitioner was detained at the Correctional Treatment Facility in the District
of Columbia. Notwithstanding her subsequent transfer to the Federal Correctional Institution in
Danbury, Connecticut, see United States Parole Commission’s Opposition to Petitioner’s Petition
for a Writ of Habeas Corpus at 3 n.1, this Court retains jurisdiction. See Rumsfeld v. Padilla,
542 U.S. 426, 439 (2004).
1
See id., Ex. D (Judgment in a Criminal Case, United States v. Bailey, No. 2010 CF2 012193
(D.C. Super. Ct. Nov. 5, 2010)). The Superior Court imposed a 24-month term of imprisonment,
suspended execution of all but three months of that term, imposed and suspended execution of a
five-year term of supervised release, and placed petitioner on a 24-month term of supervised
probation. Id., Ex. D.
Based on this conduct, the Commission charged the petitioner with the following
violation of the terms of her release:
Charge No. 1 – Law Violation. Possession with Intent to
Distribute a Controlled Substance – Cocaine (Conviction). On
7-5-10, the releasee was the front seat passenger during a traffic
stop. During a search of the vehicle, officers discovered the
subject’s wallet containing $80 and her license in the glove
compartment box with a piece of tissue containing 20 small zipper
storage bags of crack cocaine. The releasee was arrested by the
Metropolitan Police Department for the above-cited offense on 7-
5-10. On 11-5-10, the releasee was convicted by the Superior
Court for the District of Columbia for the above-cited offense and
sentenced to 24 months followed by 5 years supervised release
ESS as to all but 3 months followed by 2 years supervised
probation. This charge is based on the information contained in
the violation report dated 11-16-10 from supervising officer
Shirley Simons, a police report dated 7-5-10, and a judgment dated
11-5-10. Status of Custody/Criminal Proceedings: The subject
completed this sentence.
USPC Opp’n, Ex. E (Warrant Application dated May 11, 2011) at 2 (emphasis in original). A
violator warrant was issued on May 11, 2011, id., Ex. E (Warrant dated May 11, 2011), and was
executed on May 23, 2011, id. (United States Marshal’s Return to United States Parole
Commission dated May 23, 2011). According to the petitioner, at the time she filed her habeas
petition, she had been “held for 4 months and counting” after the execution of a violator warrant
on or about May 23, 2011, without having received a hearing on the matter. Pet. at 5.
2
The Commission conducted a revocation hearing on December 14, 2011. USPC Opp’n,
Ex. H (Hearing Summary) at 1. It revoked supervised release and ordered that the petitioner
“serve a new term of imprisonment of 13 month(s) from May 19, 2011, the date the warrant was
executed,” after which she would “serve a new term of supervised release of 47 months
following release from custody.” Id., Ex. I (Notice of Action dated January 17, 2012) at 1. Her
projected release date was April 30, 2012. 2 Id., Ex. J (Inmate Locator).
II. DISCUSSION
The petitioner alleges a “violation of due process” arising from the Commission’s delay
in conducting a supervision revocation hearing because the “paper work had gotten lost.” Pet. at
5. Delay of a revocation hearing “is not itself a valid ground for immediate release[;]” instead, a
releasee’s “remedy . . . is an action to compel a hearing.” Hill v. Johnston, 750 F. Supp. 2d 103,
105-06 (D.D.C. 2010); see Sutherland v. McCall, 709 F.2d 730, 732 (D.C. Cir. 1983) (finding
that the appropriate remedy for a delayed parole revocation hearing “is a writ of mandamus to
compel the Commission’s compliance . . . not a writ of habeas corpus to compel release . . . or to
extinguish the remainder of the sentence” (emphasis in original)). The record demonstrates that
petitioner’s revocation hearing already has taken place, and, therefore, the petitioner is not
entitled to mandamus relief. Habeas relief would be available “only . . . where a petitioner
establishes that the Commission’s delay in holding a revocation hearing was both unreasonable
and prejudicial.” Sutherland, 709 F.2d at 732. Here, the petitioner neither alleges nor
demonstrates that the delay “prejudiced [her] defense at the revocation hearing.” Id. at 733.
Now that the petitioner has received the only relief available to her, the Court will deny
the habeas petition as moot. See Vactor v. U.S. Parole Comm’n, No. 11-1249, 2011 WL
2
According to the BOP Inmate Locator, petitioner was released from custody on April 20,
2012.
3
4498802, at *3 (D.D.C. Sept. 29, 2011) (finding petitioner’s claim for mandamus was moot
because the probable cause hearing already had been held and the revocation hearing had been
scheduled); Simmons v. O’Brien, No. 7:07-cv-00193, 2007 WL 2669896, at *2 (W.D. Va. Sept.
6, 2007) (“While the delay in the instant case may have been unreasonable as the government
concedes that the hearing should have been conducted soon after [the petitioner] returned to
federal custody, [the court] find[s] that [his] claim was rendered moot by the . . . rescission
hearing” which already had taken place).
III. CONCLUSION
A District of Columbia prisoner is entitled to habeas corpus relief under 28 U.S.C.
§ 2241 if she establishes that her “custody is in violation of the Constitution or laws or treaties of
the United States.” 28 U.S.C. § 2241(c)(3). This petitioner does not establish that her custody is
unlawful, and her claim arising from the Commission’s delay in conducting a supervision
revocation hearing is moot. Accordingly, the habeas petition will be denied, and this action will
be dismissed.
An Order accompanies this Memorandum Opinion.
/s/Beryl A. Howell
BERYL A. HOWELL
United States District Judge
DATE: May 7, 2012
4