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May 21, 2001


The opinion of the court was delivered by: Amon, District Judge.


Pro se petitioner Eugene T. King, Jr. moves for habeas corpus relief pursuant to 28 U.S.C. § 2241. Specifically, petitioner argues that he was denied due process in connection with the revocation of his parole and seeks to be released from federal custody. For the reasons discussed herein, the petition is denied.


Petitioner King was paroled nunc pro tunc on July 14, 1996, from a 25-year sentence he was serving for bank robbery.*fn1 Nearly four years later, on June 7, 2000, the United States Parole Commission (the "Parole Commission") charged King with having violated the conditions of his parole by using cocaine. King was arrested on June 14, 2000 pursuant to a violator's warrant.

On June 26, 2000, the Parole Commission's Interviewing Officer conducted a preliminary interview with King at the Metropolitan Detention Center in Brooklyn. King admitted that he had used cocaine while on parole, and that he submitted urine specimens that tested positive for cocaine on at least eight occasions in 1999 and 2000. (Respondent's Mem. in Opp'n, Ex. 3.) Based on King's admissions and the laboratory reports verifying the positive urine tests, the Interviewing Officer found there was probable cause for finding that King had violated his parole. (See id.)

The Parole Commission notified King on or about July 25, 2000, that he was eligible to apply for an expedited revocation determination. Under the procedure, King had the opportunity to waive his right to a revocation hearing, and accept the Parole Commission's recommended sentence of 12 months' imprisonment, the minimum sentence under the Parole Commission's guidelines for his violation.*fn2 The notice stated that:

You are under no obligation to apply for the expedited revocation procedure set forth above. If you do not wish to waive your right to a revocation hearing and accept the proposed decision set forth, do not complete this form. You will be given a revocation hearing under normal procedures. After your revocation hearing, the Commission, on the basis of the information available, may take any action authorized by its regulations. Thus, the action taken by the Commission may be the same, more favorable, or less favorable than the proposed action set forth above. The fact that you chose to have a revocation hearing rather than accept the proposed decision set for forth above will not be taken into account.

(Respondent's Mem. in Opp'n, Ex. 4 at 3.) King chose not to apply for an expedited revocation proceeding.

At the revocation hearing, King admitted that he had violated his parole, but asked for a lenient sentence based on his personal circumstances. (Respondent's Mem in Opp'n, Ex. 5, at 1-2.) Based on the hearing, the Parole Commissioner's Examiner recommended a sentence of 8 months, a departure from the applicable Parole Commission guidelines range of 12-16 months, and placement in a Community Correction Center for 60 days prior to release. (See id. at 3.) The Examiner concluded a departure was warranted because, inter alia, King had not been involved in any criminal activity for more than 13 years, had been on parole successfully for 4 years before the drug violation at issue, and had participated in drug therapy while on parole.

In a subsequent telephone conference on November 14, 2000, King informed the Court that he intended to withdraw the instant petition if the Parole Commission adopted the Examiner's recommendation made at his hearing. Unbeknownst to both King and the Court, on October 20, 2000, a Parole Commission Reviewer had considered and rejected the Examiner's recommendation of an 8-month sentence, because the Reviewer disagreed that the factors cited by the Examiner warranted a departure from the guidelines. The Reviewer noted that King had not been involved with criminal activity for 13 year in part because he had been in prison from 1987 to 1996, and that he had admitting using cocaine as early as 1998, two years after his release on parole, and had been using cocaine consistently since then, despite his participation in drug treatment programs. (Respondent's Mem. in Opp'n, Ex. 5, at 4.) The Reviewer instead recommended a sentence at the bottom of the guidelines, 12 months.

The Parole Commission subsequently issued a Notice of Action ("NOA") dated October 25, 2000, sentencing petitioner to 12 months. The NOA informed King that the decision was appealable to the National Appeals Board pursuant to 28 C.F.R. § 2.26. King does not appear to have received the NOA until November 15, 2000, after the telephone conference with the Court.

On November 28, 2000, King filed a motion requesting an evidentiary hearing, or in the alternative, for summary judgment, and indicating that he no longer intended to withdraw his petition. King filed a supplemental motion requesting that he be granted habeas corpus relief on January 26, ...

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