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Powell v. United States Parole Commission

August 2, 2007

JEROME POWELL, PETITIONER,
v.
UNITED STATES PAROLE COMMISSION AND UNITED STATES MARSHALS SERVICE, RESPONDENTS.



The opinion of the court was delivered by: William M. Skretny United States District Judge

DECISION AND ORDER

I. INTRODUCTION

Jerome Powell ("Powell" or "petitioner") brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, claiming that his federal due process rights were violated in connection with his parole revocation because: (1) he did not receive notice or timely dispositional review of the United States Parole Commission's ("the Commission") violation warrant, and (2) he has not yet received a revocation hearing and the statutory time period for such hearing has expired. Powell contends that the appropriate relief for the Commission's failure to act within statutory time limits is his immediate release from custody. Alternatively, Powell seeks a writ of mandamus, pursuant to 28 U.S.C. § 1361, compelling the Commission to conduct his parole revocation hearing.

Respondents have filed an answer to the petition, with exhibits, and a supporting memorandum of law. Powell was given the opportunity to file a response, but did not do so. For the reasons that follow, the petition is denied.

II. BACKGROUND

On December 6, 1984, Powell pled guilty in the United States District Court for the Eastern District of Virginia to committing armed bank robbery on March 9, 1984. The District Court sentenced Powell, on December 27, 1984, to a 12-year prison sentence. Powell was released on parole on January 2, 1990, with a sentence expiration date of October 8, 1996.

Following his release, Powell violated his parole on several occasions. In his first year of release, Powell was convicted on three counts of armed robbery in Massachusetts. As a result of those violations, the Commission revoked Powell's parole and declined to grant him the time he had spent on parole (his "street time") toward satisfaction of his original 12-year sentence. When Powell again was released to parole supervision on November 22, 1996, his new sentence expiration date, following the forfeiture of his street time, was March 26, 2003.

Well before the new expiration date, Powell committed administrative violations of his parole in 1997 and 1998. The Commission offered Powell a parole revocation proposal relative to the 1998 violations,*fn1 which he accepted. Pursuant to that agreement, Powell was released on November 5, 1999, with a new sentence expiration date of May 16, 2003.

The circumstances giving rise to this petition involve Powell's next violation. On January 25, 2001, Powell's probation officer informed the Commission that Powell had been indicted for a string of eight robberies in Brooklyn, New York in which he displayed what appeared to be a handgun, and that he was in custody pending disposition of those charges. Based on this information, the Commission issued a violator warrant on March 8, 2001, and directed the United States Marshals Service ("the Marshal") to place a detainer and assume custody of Powell upon his release from state custody.

On March 29, 2005, the Marshal gave notice to the Commission that it would arrest Powell on April 25, 2005 and remand him to the Erie County Medical Center due to his need for kidney dialysis. On April 1, 2005, Powell was informed by the New York State Department of Correctional Services that he would be taken into federal custody upon his release from his state sentence. On April 2, 2005, Powell submitted to the Commission a written application seeking withdrawal of the detainer. The record does not reflect any action taken by the Commission with regard to Powell's submission.

On April 19, 2005, the Commission supplemented its warrant to reflect the fact that Powell had been convicted on three of the eight counts of robbery with which he had been charged. On that same date, the Commission contacted the Federal Bureau of Prisons ("BOP") seeking Powell's expedited designation to a BOP facility equipped to provide him with kidney dialysis. Powell was taken into custody on April 25, 2005 and was housed at the Erie County Holding Facility.

On June 2, 2005, the BOP advised the Commission that Powell was fifteenth on a waiting list for transfer to a BOP facility with dialysis beds and would not be designated prior to the July 23, 2005*fn2 deadline for his revocation hearing. The Commission explored moving Powell to a BOP facility without dialysis capability for purposes of the hearing, but was told no such designation could be made without medical clearance. As of July 22, 2005, Powell had moved to eleventh on the pending dialysis list. He remained in that same slot as of September 1, 2005. On October 31, 2005 the Commission decided to hold Powell's institutional revocation hearing at the Erie County Holding Facility rather than continuing to wait for the BOP to place him in a federal facility. The Commission recommended that the hearing take place on a Tuesday or Thursday, the only weekdays Powell was not transported to a medical center for dialysis. The revocation hearing was held on December 6, 2005. During the hearing, Powell admitted to the three Brooklyn robberies for which he had been convicted, but denied the five others alleged in the Commission's warrant.

The hearing examiner determined that Powell's reparole guideline range was 100-148 months, but that his mandatory release date from his original 12-year sentence would be after 80 months. The examiner recommended that the Commission revoke parole and continue Powell to the expiration of his original sentence-a recommendation below the reparole guideline range. The Commission accepted that recommendation and, on December 21, 2005, issued a Notice of Action revoking Powell's parole, declining to credit him with any street time, and ordering that he remain in custody until his sentence expired on September 6, 2007.

III. DISCUSSION

A. The Governing ...


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