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Kier v. Killian

August 13, 2008

CARLOS KIER, PETITIONER,
v.
J.M. KILLIAN, WARDEN OF THE OTISVILLE FEDERAL CORRECTIONAL INSTITUTION, RESPONDENT.



The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge*fn1

OPINION & ORDER

Pro sepetitioner Carlos Kier ("Petitioner" or "Kier"), an inmate at the Federal Correctional Institution in Otisville, New York ("FCI-Otisville"), filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner claims that he was denied procedural and substantive due process of law when (1) the United States Parole Commission ("Parole Commission") imposed an unlawful term of imprisonment for his violation of supervised release, and (2) the Federal Bureau of Prisons ("BOP") wrongly determined that his two terms of imprisonment should run consecutively rather than concurrently. Pet. for a Writ of Habeas Corpus, Jan. 2, 2008 ("Pet."). For the reasons set forth below, the petition is denied.

I. BACKGROUND

On June 2, 2004, Kier pled guilty in the District of Columbia Superior Court ("D.C. Superior Court") to distribution of cocaine. Decl. of Douglas W. Thiessen ("Thiessen Decl.") ¶ 4, Ex. B (Judgment & Commitment Order, June 2, 2004). Kier was sentenced to one year of imprisonment, followed by a two-year term of supervised release. Id. On February 10, 2005, Kier was released from prison. Thiessen Decl. Ex. D (Report of Alleged Violations, Feb. 28, 2005). Within three weeks, however, Kier violated the conditions of his supervised release when he submitted a false address to his Supervision Officer on February 15, 2005 and failed to report for supervision on February 16, 2005. Id. Kier again violated the conditions of his supervised release when he was arrested and charged with distribution of heroin on April 9, 2005. Thiessen Decl. Ex. E (Report of Alleged Violations, Apr. 11, 2005). On April 28, 2005, the Parole Commission issued a warrant for Kier's arrest for his three supervised release violations, which was served on Kier on August 18, 2005.*fn2 Id. ¶ 8, Ex. F (Warrant).

On August 26, 2005, Kier appeared with counsel at a probable cause hearing before the Parole Commission. Thiessen Decl. ¶ 9, Ex. G (D.C. Probable Cause Hearing Digest, Aug. 25, 2005). Id. He denied all three alleged violations of supervised release. Id. However, the Parole Commission found that probable cause existed and continued the proceedings. Id. On October 24, 2005, the Parole Commission held a hearing to determine whether Kier's term of supervised release should be revoked because he violated the supervised release conditions and, if so, to determine an appropriate sentence. Thiessen Decl. ¶ 10, Ex. H (Hearing Summary, Oct. 24, 2005 ("Hearing Summary")). Kier appeared with counsel at the hearing. Id.

On November 14, 2005, the Parole Commission revoked Kier's supervised release and sentenced him to a "new term of imprisonment of 36 months from August 18, 2005, the date the warrant was executed." Thiessen Decl. ¶ 11, Ex. I (Notice of Action, Nov. 14, 2005). In accordance with 28 C.F.R. § 2.220, the Notice of Action advised Kier of his right to appeal to the National Appeals Board of the Parole Commission within 30 days. Notice of Action. According to the Parole Commission's records, Kier never filed an appeal. Thiessen Decl. ¶ 15.

Kier's 2005 Heroin Distribution Conviction

Meanwhile, on August 16, 2005, Kier had been arrested by the District of Columbia Metropolitan Police Department ("D.C. Police Department") and charged with distribution of heroin. Decl. of J.R. Johnson ("Johnson Decl.") ¶ 7, Ex. C (Pre-sentence Report in United States v. Kier, No. F-4664-05, at 4) ("Pre-sentence Report"). While he was in D.C. Police Department custody, the Parole Commission served Kier with the April 2005 warrant for violation of supervised release. Resp't's Mem. in Opp'n to Pet. ("Mem. in Opp'n") at 2 (citing Thiessen Decl. ¶ 8).

On October 19, 2005, Kier pled guilty in the D.C. Superior Court to distribution of heroin. Pre-sentence Report at 4. Kier admitted that he was involved with distribution of heroin while he was on supervised release following his 2004 cocaine distribution conviction. Id. On December 14, 2005, Kier was sentenced in the D.C. Superior Court to a 72-month term of imprisonment to be followed by a five-year term of supervised release for his heroin distribution conviction. Johnson Decl. ¶ 9, Ex. E (Judgment & Commitment Order, Dec. 14, 2005). The court was silent as to whether the sentence would run consecutively or concurrently to Kier's existing sentence, i.e., the 36-month term of imprisonment for violation of supervised release. Id. Accordingly, the BOP determined that Kier would serve the 36-month term of imprisonment for violation of supervised release and the 72-month term for heroin distribution consecutively for a total term of 108 months' imprisonment. Johnson Decl. ¶¶ 10-11, Ex. F (Sentence Monitoring Computation Data). Pursuant to D.C. Code § 24-101, Kier was to serve both sentences in BOP custody. D.C. Code § 24-101. He was transferred to FCI-Otisville on February 8, 2006. Johnson Decl. ¶ 9.

II. STANDARD OF REVIEW

A prisoner seeking habeas corpus relief under § 2241 must demonstrate that "[h]e is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). Papers by a pro se litigant are construed liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972); McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999).

Further, "[i]t is well settled that a federal court's review of the [Parole] Commission's decision to revoke a petitioner's release is extremely limited in light of the Commission's broad discretion in this area." Stinchfield v. Menifee, 119 F. Supp. 2d 381, 385 (S.D.N.Y. 2000). Therefore, judicial review of a decision rendered by the Parole Commission is limited to a determination of whether the Parole Commission abused its discretion. Lieberman v. Gunnell, 726 F.2d 75, 77 (2d Cir. 1984); Bialkin v. Baer, 719 F.2d 590, 593 (2d Cir. 1983). The reviewing court must defer to the Parole Commission's interpretation of its own regulations and must only reverse where the interpretation is unreasonable or has no rational basis. 726 F.2d at 77.

III. DISCUSSION

Here, Petitioner does not challenge the Parole Commission's revocation of his supervised release, but instead argues that the Parole Commission lacked the authority to impose a new term of imprisonment. Pet. at 4. Kier also argues that the BOP should have run his two sentences concurrently instead of consecutively. Id. at 7. The government argues that (1) Kier's challenge to his term of imprisonment for violation of supervised release should be denied for failure to exhaust administrative remedies, and (2) even if Kier ...


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