United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
David R. Herndon District Judge
Robert Alexander is currently incarcerated in the United
States Penitentiary at Marion, Illinois (USP-Marion). He
brings this habeas corpus action pursuant to 28 U.S.C. §
2241, in order to challenge the decision of the United States
Parole Commission to revoke his parole and continue his
sentence beyond the term provided by the parole guidelines.
This matter is now before the Court for review of the
Petition (Doc. 1) pursuant to Rule 4 of the Rules Governing
§ 2254 Cases in United States District Courts, which
provides that upon preliminary consideration by the district
court judge, “[i]f it plainly appears from the petition
and any attached exhibits that the petitioner is not entitled
to relief in the district court, the judge must dismiss the
petition and direct the clerk to notify the
petitioner.” Rule 1(b) of those Rules gives this Court
the authority to apply the rules to other habeas corpus
cases. The Petition survives preliminary review.
to the Petition, Alexander was arrested in February 2000 in
Chatham County, Georgia. (Doc. 1, pp. 1, 7). He was charged
with rape (Count 1), child molestation (Count 2), and
enticing a child for indecent purposes (Count 3). (Doc. 1,
pp. 7, 12). Alexander agreed to plead guilty to a reduced
charge of statutory rape on December 16, 2002. (Doc. 1, pp.
1, 7). In exchange, Counts 2 and 3 were dismissed. (Doc. 1,
p. 8). He was sentenced to 20 years, with 13 years to be
served and 7 years probated. (Doc. 1, pp. 1, 7).
serving more than 11 years (i.e., 142 months) in
state custody, Alexander was released on parole by the
Georgia Board of Pardons and Parole on February 12, 2012.
(Doc. 1, p. 7). The United States Parole Commission then took
him into custody for a federal parole violation stemming from
his Georgia conviction. Id. The Parole Commission
conducted a hearing on June 28, 2012, and decided to revoke
his parole. (Doc. 1, pp. 3, 7, 12-15). Alexander was given no
credit for time he spent on parole. Id. His sentence
was “[c]ontinue[d] to expiration, after the service of
approximately 239 months.” Id.
arriving at this decision, the Parole Commission initially
rated Alexander's offense level as a category seven.
(Doc. 1, pp. 7-8). The parole guidelines provided that an
individual with Alexander's salient factor score in
category seven should be released in 78-110 months. (Doc. 1,
p. 7). However, the Parole Commission departed from its
allegedly “miscalculated guideline range [by] fixing
Petitioner's presumptive parole date at 2020, ”
i.e., which was 92 months beyond the guideline
range. Id. The Parole Commission reasoned that the
upward departure was warranted by the fact that Alexander
drugged his victim, raped her, and gave her a sexually
transmitted disease (STD). (Doc. 1, pp. 7, 12-15).
appealed the decision. (Doc. 1, pp. 4, 15). However, the
National Appeals Board affirmed the Parole Commission's
decision. (Doc. 1, p. 15). Alexander attended a second
hearing before the Parole Commission on March 6, 2014. (Doc.
1, pp. 4, 16). The second hearing resulted in no change in
the previous decision. (Doc. 1, p. 16). Alexander also
appealed this decision, and the appeal was denied on December
9, 2014. (Doc. 1, p. 18).
filed a Petition for Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2241 in this District on February 21, 2014.
Alexander v. United States Parole Commission, No.
14-cv-00382-DRH (S.D. Ill. 2014). However, Alexander later
sought voluntary dismissal of the petition. (Doc. 7). This
Court granted his request and dismissed the petition without
prejudice on April 1, 2014. (Doc. 8).
instant § 2241 Petition, Alexander maintains that the
Parole Commission's upward departure from the parole
guidelines violated his due process rights and was arbitrary,
capricious, and an abuse of discretion. (Doc. 1, p. 7). He
offers several arguments in support of this assertion. (Doc.
1, pp. 7-11). First, he contends that the Parole Commission
should not have categorized his severity level based on the
rape charge or departed from the guideline range based on a
record that is devoid of any evidence -- other than the
victim's own inconsistent statements -- that Alexander
drugged his victim or gave her an STD. (Doc. 1, p. 7).
Second, he maintains that the Parole Commission used the same
information to establish the guideline range and to depart
from it. (Doc. 1, p. 8). Third, the Parole Commission
allegedly disregarded all evidence of his good inmate
behavior and educational achievements when making its
decision. (Doc. 1, p. 9). Finally, he claims that he was
given ineffective assistance of counsel at his revocation
hearing. (Doc. 1, p. 10).
now asks this Court to grant his Petition and order Warden
True to release him from custody. (Doc. 1, p. 11). He also
seeks an Order requiring the Parole Commission to close his
case and take no further action on it. Id.
petition for writ of habeas corpus filed pursuant to 28
U.S.C. § 2241 is generally the proper vehicle for
challenging “the fact or duration of
confinement.” Hill v. Werlinger, 695 F.3d 644,
645 (7th Cir. 2012) (citing Walker v. O'Brien,
216 F.3d 626, 629 (7th Cir. 2000)). Section 2241 challenges
are “usually reserved for attacking the execution, not
imposition, of a sentence.” Kramer v. Olson,
347 F.3d 214, 217 (7th Cir. 2003). Petitions are generally
appropriate when success would “spell speedier
release.” Wilkinson v. Dotson, 544 U.S. 74, 82
(2005). A petition for review of a final determination made
by the Parole Commission fits squarely within this category.
See Romano v. Baer, 805 F.2d 268 (7th Cir. 1986)
(§ 2241 petition appropriate method to challenge
decision of Parole Commission to continue petitioner beyond
term provided by parole guidelines). See also Clemente v.
Allen, 120 F.3d 703, 705 (7th Cir. 1997)
(“[C]hallenges to the computation of a sentence must be
brought under 28 U.S.C. § 2241.”); Carnine v.
United States, 974 F.2d 924, 927 (7th Cir. 1992) (same);
Lewis v. United States Parole Commission, 132 F.
App'x 659, 660 (7th Cir. May 16, 2005) (dicta,
miscalculation of petitioner's parole date is a claim
properly brought under § 2241 as a challenge to the
execution of the sentence); Docken v. Chase, 393
F.3d 1024, 1031 (9th Cir. 2004) (challenge to the frequency
of parole review could potentially affect the duration of
confinement and is properly brought under habeas).
instant Petition challenging the calculation made by the
Parole Commission in 2012 and affirmed in 2014 is properly
brought under § 2241. Moreover, venue is proper because
Alexander is currently confined at a facility in this federal
judicial district. See Braden v. 30 Judicial Circuit
Court of Kentucky, 410 U.S. 484 (1973) (venue proper in
district that imposed sentence or in district where inmate is
imprisoned); Mikolon v. United States, 844 F.2d 456,
460-61 (7th Cir. 1988); United States v.