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Wright v. Entzel

United States District Court, N.D. West Virginia

January 29, 2019

HENRY WRIGHT, Petitioner,
v.
WARDEN ENTZEL, Respondent.

          REPORT AND RECOMMENDATION

          JAMES P. MAZZONE, UNITED STATES MAGISTRATE JUDGE.

         On March 1, 2018, the pro se petitioner, Henry Wright, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. The petitioner is currently incarcerated at FCI Beckley but was incarcerated at FCI Hazelton when he filed this case. In the petition, the petitioner challenges the decision of the United States Parole Commission (“Commission”) to depart 58 months above the re-parole guideline range. The petitioner paid the $5.00 filing fee on March 1, 2018. On March 2, 2018, Magistrate Judge James E. Seibert conducted a preliminary review of this matter and determined that summary dismissal of the same was not warranted. Accordingly, an Order to Show Cause was entered. On April 6, 2018, the respondent filed a Motion to Dismiss, or in the Alternative, Motion for Summary Judgment. On April 9, 2018, a Roseboro Notice was issued, and on May 2, 2018 the petitioner filed a response.

         This matter, before the undersigned for a Report and Recommendation pursuant to LR PL P 2, is ripe for review.

         I. FACTUAL AND PROCEDURAL HISTORY

         On March 3, 1993, the petitioner was sentenced to an aggregate 20-year sentence by the Superior Court for the District of Columbia following his guilty plea to two counts of robbery and one count of assault with a dangerous weapon. ECF No. 10-3 at 1-2. On February 17, 1995, the petitioner was released on parole by the D.C. Board of Parole. Id. at 11. He was to remain under supervision within the limits of the Washington Metro Area until September 1, 2012, unless or until other action was taken by the D.C. Board of Parole. Id.

         On August 19, 1997, the D.C. Board revoked the petitioner's parole based on new criminal violations. ECF No. 10-3 at 12. The petitioner was again released on parole on August 13, 1999, to remain under supervision within the limits of the Washington Metropolitan are until October 31, 2014, unless and until other action was taken by the D. C. Board of Parole. Id.

         On January 25, 2001, following a revocation hearing, the Commission revoked the petitioner's parole. ECF No. 10-3 at 18. The petitioner was re-paroled on August 20, 2004, to remain under parole supervision through October 28, 2016. Id. at 21.

         On January 13, 2006, pursuant to his advanced consent to expedited revocation, the Commission again revoked the petitioner's parole. ECF No. 10-3 at 24. The petitioner was re-paroled on November 24, 2006, to remain under supervision through September 1, 2016. Id. at 27.

         On January 2, 2009, the Commission issued a violator warrant based on charges of failure to submit to drug testing, use of a dangerous and habit forming drugs, failure to report to supervising officer as directed, failure to report change in residence, and assault. ECF No. 10-3 at 31. On February 12, 2009, the Commission revoked the Petitioner's parole. Id. at 34. On May 14, 2010, the petitioner was again released on parole with a full term date of October 20, 2018. ECF No. 10-4 at 1.

         On March 28, 2011, the petitioner's supervision officer requested a warrant based on his January 24, 2011 arrest for attempted murder, assault-first degree, and assault-second degree in Prince Georges County, Maryland. ECF No. 10-4 at 4-5. The petitioner was convicted in the Circuit Court of Prince Georges County, Maryland of assault second degree and dangerous weapon openly with intent to injure and was sentenced on October 7, 2011, to 13 years of imprisonment. ECF No. 10-4 at 26-28. The Commission supplemented the charges on the violator's warrant to reflect the conviction. Id. at 29. On April 29, 2013, the Circuit Court's judgment was reversed by the Court of Special Appeals. ECF No. 10-4 at 35. At his trial following remand, the petitioner was found guilty of second degree misdemeanor assault and sentenced to ten years imprisonment. Id. at 33. On February 2, 2015, the court granted the petitioner's motion for reconsideration and reduced his sentence to eight years imprisonment with credit for four years and 20 days to be followed by five years probation upon release. Id. at 38.

         On August 7, 2017, the petitioner completed his sentence in Maryland and was taken into custody on the Commissioner's violator warrant. ECF No. 10-4 at 40. A revocation hearing was conducted on November 17, 2015. The petitioner appeared in person and with counsel. Id. at 41. At the hearing, the petitioner told the hearing examiner that he cut his wife and her daughter while he was using a knife to defend himself. Id. The hearing examiner determined that given that the victim required stitches and staples this incident was a category five offense of assault. Id. at 42. With a Salient Factor Score of 1, the guidelines indicated that the petitioner should serve 60-72 months before being re-paroled. However, the hearing examiner found that the petitioner was a more serious parole risk than established by the guidelines because he ”stabbed his wife and her daughter with knife which required stitches. Assaulted wife previously in 2009 and [he] continue[d] to engage in criminal activity upon release.” Id. at 43. Accordingly, the hearing examiner recommended that the petitioner's parole be revoked with no credit for time on parole, and he continue incarceration until the expiration of his sentence. The hearing examiner estimated that the petitioner would serve another 129 months approximately. Id. In a memorandum dated December 1, 2015, the Case Operations Administrator agreed with the examiner's recommendation to continue to expiration and recommended the Commission include the following reasons for a decision above the guidelines:

[Y]ou are a more serious risk than indicated by the guidelines in that your repetitive violent criminal conduct that has not been deterred by prior periods of confinement or parole supervision. Your base offense that resulted in the current parole violator term resulted from criminal conduct that occurred in August 1992 in which you robbed a female victim after forcing her to take her clothes off. At the time you committed that offense, you had already been convicted once previously for assault.
After originally receiving a 20 year sentence from the District of Columbia, you have been given the opportunity for parole/re-parole on five separate occasions. Three of your four previous revocations of parole resulted from new criminal behavior. Two of these were for assault. One involved your involvement in an assault committed with a knife in February of 2000. The other involved an assault on your wife in November of 2008.
Despite repeated opportunities at parole supervision, your current violation behavior involved another assault on the same victim at your last period of parole. The commission finds that you are likely to continue to commit assaultive crimes and that you are not a suitable candidate to release prior to expiration of your term

ECF No. 10-4 at 44. The Commission adopted the examiner's and reviewer's recommendations and reasons in an order dated December 18, 2015. ECF No. 10-4 at 45.

         Thereafter, the petitioner, by counsel, filed a Notice of Appeal. The appeal alleged that the Commission's decision to depart above the re-parole guideline range was an abuse of discretion because the decision amounted to double counting. The appeal further alleged that the decision was not supported by the facts of the case. ECF No. 10-4 at ...


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