United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
V. Hodges Columbia, United States Magistrate Judge.
Ford (“Petitioner”), proceeding pro se, filed
this petition seeking a writ of habeas corpus pursuant to 28
U.S.C. § 2241. Petitioner challenges the 2001 decision
of the United States Parole Commission (“USPC”)
to rescind his parole. Petitioner is a prisoner housed at the
Federal Correctional Institution in Edgefield, South
matter comes before the court on Respondent's motion to
dismiss, or in the alternative, for summary
judgment. [ECF No. 10]. Pursuant to Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975), the undersigned
advised Petitioner of the summary judgment and dismissal
procedures and the possible consequences if he failed to
respond adequately to Respondent's motion by August 8,
2016. [ECF No. 11]. Petitioner failed to file a response. The
undersigned issued an order on August 11, 2016, directing
Petitioner to advise the court whether he wished to continue
with this case and to file a response to Respondent's
motion by August 25, 2016. [ECF No. 13]. Notwithstanding the
court's orders, Petitioner failed to file a response to
Respondent's motion. On August 26, 2016, the undersigned
issued a report and recommendation (“Report and
Recommendation”) recommending the petition be dismissed
with prejudice for failure to prosecute. [ECF No. 15].
Petitioner filed an objection to the Report and
Recommendation on September 19, 2016, stating he did not
receive any legal mail from the court other than the Report
and Recommendation. [ECF No. 18]. On September 22, 2016, the
court entered an order declining to adopt the Report and
Recommendation, directing the clerk of court to send
Respondent's motion for summary judgment to Petitioner,
and directing Petitioner to file a response to
Respondent's motion by October 26, 2016. [ECF No. 19].
Petitioner failed to file a response. The undersigned issued
an order on November 21, 2016, directing Petitioner to advise
the court whether he wished to continue with this case and to
file a response to Respondent's motion by December 5,
2016. [ECF No. 22]. Petitioner failed to file a response. As
such, it appears to the court that Petitioner does not oppose
Respondent's motion for summary judgment and wishes to
abandon this action. Based on the foregoing, the undersigned
recommends this action be dismissed with prejudice for
failure to prosecute. See Davis v. Williams, 588
F.2d 69, 70 (4th Cir. 1978); Fed.R.Civ.P. 41(b).
after having carefully considered the parties'
submissions and the record in this case, the undersigned
recommends Respondent's motion for summary judgment [ECF
No. 10] be granted on the merits.
Factual and Procedural Background
states he was sentenced on November 19, 1987, in the District
of Columbia to 39 years imprisonment for armed robbery. [ECF
No. 1 at 1, 10]. Petitioner claims he was granted parole
effective June 22, 1999, however his “parole was
retarded by 51 days allowing for the Petitioner's release
to Hope Village half-way house.” Id. at 10. On
August 13, 1999, Petitioner was transferred from Maximum
Security Facility, Lorton, Virginia, to Hope Village. [Final
Progress Report (Escape), In re: Glenn Ford, August 26, 1999,
ECF No. 1-1 at 1]. On August 15, 1999, Petitioner requested
to speak with Charge of Quarters, Samuel Essema
(“Essema”), in Essema's office. Id.
at 2. When Essema agreed, Petitioner “produced a hand
gun from a plastic bag and pointed it in Mr. Essma's
direction.” Id. Petitioner asked if he could
leave Hope Village, and when Essema told Petitioner he needed
to call a supervisor, Petitioner left Essema's office and
“fled Hope Village grounds.” Id.
Petitioner states the District of Columbia Department of
Corrections suspended his parole on August 31, 1999, pending
further determination by the USPC. [ECF No. 1 at 10].
Petitioner alleges a Notice of Action was filed on September
28, 1999, based on the alleged escape and use of firearm
against staff. Id. Petitioner states he was arrested
on November 12, 1999. Id. Petitioner had a parole
recession hearing on September 12, 2001. [Recession Hearing
Summary, Glenn Ford, September 12, 2001, ECF No. 10-16].
Petitioner testified at his hearing, admitting having escaped
from Hope Village, but denying having used a firearm.
Id. at 1. In finding Petitioner should be found
guilty of the escape and firearm charge, the hearing examiner
considered Petitioner's testimony and determined the
report from Hope Village concerning Petitioner's escape
was “more believable than [Petitioner's]
story.” Id. The examiner recommended
Petitioner's parole be rescinded. Id. at 3. On
October 12, 2001, the USPC rescinded Petitioner's parole
and continued his mandatory release date “to
expiration.” [ECF No. 10-17].
states he “was convicted for the conduct of the escape
and the use of a firearm against a staff member by a
memo.” [ECF No. 1 at 12]. Petitioner alleges he was
denied the right to cross-examine any witness concerning the
allegation as to the use of the firearm. Id.
Petitioner further claims the alleged victim, Essema, did not
author or sign the memo, nor did Essema provide a first-hand
report to the parole board. Id. at 13. Petitioner
cites to a September 26, 2000 investigator memo that
summarizes an interview with Essema. Id. at 14.
Petitioner contends the interview was conducted “some
13 months after the alleged incident” and shows Essema
“did not remember any specific events” from the
day Petitioner left the halfway house. Id. at 14-15.
Petitioner states he was “unaware of the interview of
Essema, until recently when during a conversation with his
appointed counsel he asked for assistance was he provided
with the report.” Id. at 14. Petitioner argues
received a 5 year prison sentence based on no evidence, no
testimony, and not only hearsay statements but a piece of
paper that is by an unknown author, unsigned, allegedly
representing another person, discussing facts from someone
who does not remember a firearm contemporaneous to the
Id. at 16-17. Petitioner seeks immediate release.
Id. at 17.
the fifth 28 U.S.C. § 2241 petition filed by Petitioner
challenging the 2001 recession of his parole based on the
August 15, 1999 escape infraction. Petitioner filed his first
petition on May 15, 2002, in the Eastern District of North
Carolina. Ford v. Scott, No. 5:02-HC-326-H (E.D.
N.C. July 8, 2003) (“Ford I”). In Ford
I, Petitioner challenged the USPC's decision to
rescind his parole following his escape, arguing the USPC
improperly applied federal parole guidelines. Id.,
ECF No. 16. The Ford I court found Petitioner's
arguments to be without merit and the petition was dismissed
with prejudice. Id.
filed a second petition on October 24, 2003, in the Eastern
District of North Carolina. Ford v. Scott, No.
5:03-HC-792-H at *4 (E.D. N.C. Sept. 2, 2004)
(“Ford II”). In Ford II,
Petitioner again challenged the USPC's decision to
rescind his parole following his escape. Id., ECF
No. 14. Petitioner argued, in part, that (a) there was
“not a rational basis in the record” to support
the USPC's finding that he assaulted a correctional
employee, and (b) his due process rights were violated when
he was not allowed to confront the person accusing him of
assault. Id. The Ford II court dismissed
Petitioner's claims with prejudice finding Petitioner was
not entitled to due process protections because
Petitioner's parole was not revoked, but rescinded.
Id. The court explained Petitioner was only entitled
to limited procedural safeguards, which Petitioner received
by having a full and fair recession hearing, where Petitioner
testified and the hearing officer weighed Petitioner's
testimony against the available reports that detailed the
halfway house employee's statement concerning
Petitioner's escape. Id.
filed a third petition on October 31, 2005, in the Eastern
District of Kentucky. Ford v. Sammuels, No. 6:05-
CV-604-KKC (E.D. Ky. Dec. 15, 2005) (“Ford
III”). The court dismissed Ford III
without prejudice finding Petitioner had failed to exhaust
his administrative remedies. Id., ECF No. 4.
filed a fourth petition in the Eastern District of Kentucky
on January 13, 2006. Ford v. Grondolsky, No.
6:06-CV-10-DCR (E.D. Ky. Dec. 20, 2006) (“Ford
IV”). In Ford IV, Petitioner again
addressed the USPC's decision to rescind his parole
following his escape and argued, in part, that (a) there was
an absence of live witnesses at his hearing and (b) the USPC
improperly relied on hearsay evidence and an unsigned final
progress report to rescind his parole. Id., ECF No.
5 at 5-6. In dismissing Petitioner's case with prejudice,
the court found the USPC's findings, including its
reliance on the unsigned final progress report, were
“insulated from judicial review.” Id.,
ECF No. 5 at 6. The court further found the USPC's
reliance on hearsay would not necessarily amount to a due
process violation, finding that:
[T]he use of reports from probation officers is routinely
accepted and provides no basis for objection. . . . Further,
even where the conduct of the parole revocation runs afoul of
the protections described in Morrissey v. Brewer,
408 U.S. 471 (1972), the Petitioner must both allege and
demonstrate prejudice resulting therefrom . . . Ford has done
neither here. As a result, his allegations regarding the