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BAILEY v. U.S. PAROLE COMMN.

July 23, 1991

OLLIE LEON BAILEY, Plaintiff,
v.
U.S. PAROLE COMMISSION, Defendant


Charles P. Kocoras, United States District Judge.


The opinion of the court was delivered by: KOCORAS

CHARLES P. KOCORAS, UNITED STATES DISTRICT JUDGE

 This matter comes before the court on Petitioner Ollie Leon Bailey's petition for a writ of habeas corpus. For the following reasons, the petition is denied.

 BACKGROUND

 Mr. Bailey petitions this court for a writ of habeas corpus, claiming his incarceration is illegal. More specifically, he attacks the actions of the United States Parole Commission ("Commission") in revoking his parole.

 In 1982 this court convicted and sentenced Mr. Bailey to five years in prison for uttering and publishing a forged United States treasury check and possession of stolen mail. In 1985, soon after releasing Mr. Bailey on parole, the Commission found that he had violated some of his parole conditions. Subsequently, the Commission revoked Mr. Bailey's parole. The Commission reparoled Mr. Bailey on November 25, 1989, with two special conditions. First, he had to attend a drug aftercare program, and second, he had to reside in a community treatment center ("CTC"). The Regional Commissioner soon terminated the second condition due to the travel inconvenience presented by the Rockford based CTC and Mr. Bailey's prospective employment in Chicago. In February of 1990, Mr. Bailey tested positive for cocaine in his standard monthly urine test. As a result, the Commission issued a parole violator warrant charging him with: (1) unauthorized use of drugs, (2) violation of special drug aftercare condition, (3) failure to obtain or maintain regular employment, and (4) failure to submit written supervision reports for all months between and including November, 1989 to February, 1990. U.S. Marshals took Mr. Bailey into custody on March 22, 1990.

 On April 20, 1990, U.S. Probation Officer Butler L. Sharpe III conducted Mr. Bailey's preliminary interview to determine if probable cause existed on any of the charges. Sharpe reported his recommended finding of probable cause on charges one and two to the Regional Commissioner. He failed to find probable cause on charges three and four. In a report dated May 4, 1990, the Regional Commissioner found probable cause on all four charges and ordered Mr. Bailey to remain in custody until the local revocation hearing.

 The Commission scheduled this hearing for June 27, 1990, but rescheduled and held it on August 21, 1991, by the request of Mr. Bailey's attorney. The Commission afforded Mr. Bailey the right to an attorney and allowed him to present witnesses. In light of the evidence, the hearing examiners recommended that Mr. Bailey's parole be revoked, all time spent on parole credited, and reparole after seven months in prison with special drug aftercare conditions. The Regional Commissioner, upon review of the examiners' recommendation, extended the prison sentence to sixteen months, and reported this decision to the National Commissioners for review pursuant to 28 C.F.R. § 2.24(a). The National Commissioners upheld the extended sentence and notified Mr. Bailey of the final decision on November 1, 1990. Pursuant to 28 C.F.R. § 2.26, Mr. Bailey appealed to the National Appeal Board of the Commission, who affirmed the prior ruling.

 After exhausting all administrative options, Mr. Bailey turns to this court, requesting a writ of habeas corpus. In support of his petition, Mr. Bailey argues that during the parole revocation process, the Commission abused its discretion, violated his due process rights, and violated statutory regulations. In response, the Commission denies these allegations and contends that it allotted Mr. Bailey a fair hearing. This court must decide whether Mr. Bailey's accusations merit a writ of habeas corpus.

 DISCUSSION

 1. Proper Party Defendant

 The United States Code provides that an application for a writ of habeas corpus shall name the person who has custody over the petitioner. 28 U.S.C. § 2242. Likewise, 28 U.S.C. § 2243 provides that the writ or order to show cause is to be directed "to the person having custody of the person detained." The warden of the facility at which the petitioner is currently serving his sentence is the petitioner's custodian within the meaning of 28 U.S.C. §§ 2241-2243 and is the appropriate respondent to a writ of habeas corpus, even where the petition challenges actions by the Parole Commission. Guerra v. Meese, 252 U.S. App. D.C. 1, 786 F.2d 414, 416-17 (D.C. Cir. 1986); Billiteri v. U.S. Board of Parole, 541 F.2d 938, 948 (2d Cir. 1976). Mr. Bailey has named only the United States Parole Commission as the respondent in his petition, and therefore, has failed to name the proper party defendant. In addition, we find that the merits of Mr. Bailey's arguments do not warrant relief by this court.

 2. Standards of Review

 The Court's scope of review of a Parole Commission decision is limited. "The Court has no right to revoke or nullify proper exercise of authority by the board of parole." U.S. v. Fortner, 549 F. Supp. 657, 658 (D.C. S.C. 1982). There are three instances when the Commission's decision cannot be considered a "proper exercise of authority," Id., thus allowing the court to review the decision. First, a court is able to review a decision by the Commission for an abuse of discretion. Baker v. Day, 436 F. Supp. 593, 594 (W.D. OK. 1977); Billiteri v. U.S. Board of Parole, 541 F.2d 938, 939 (2nd Cir. 1976). Second, because a prisoner is guaranteed due process in Commission proceedings, a court may review a Commission decision for due process violations. Baker, 436 F. Supp. at 594; Zannino v. Arnold, 531 F.2d 687, 691 (3rd Cir. 1976). Third, the court may review decisions of the Commission for violations of statutory regulations. U.S. v. Wigoda, 417 F. Supp. 276, 278 (N.D. Ill. 1976). See ...


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