United States District Court, N.D. West Virginia
REPORT AND RECOMMENDATION
P. MAZZONE, UNITED STATES MAGISTRATE JUDGE.
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.
matter, before the undersigned for a Report and
Recommendation pursuant to LR PL P 2, is ripe for review.
FACTUAL AND PROCEDURAL HISTORY
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.
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
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.
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.
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.
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.
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
[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.
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 ...